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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A  TREATISE 


ON   THK 


LAW  OF  KEFLEVIN, 


AS  ADMINISTERED  IN  THE  COURTS 


THE  UNITED  STATES  AND  ENGLAND. 


BY  H.  W.  WELLS, 

C'OLXSEI.LuK    AT    LAW. 


8ZC0Sb  Ehirios   WITH  sorr.s  i>nF.i'AiiKi>  itv  iios  t:  r.  \\'i-:i.i.s.  late 

ASSOCIATE  JrsTlCI-:  OF  THK  SC I'laWlK  CoCh'T  <>F  TIJK  TKlx'KiroHY 
OF  COLORADO,  FJiOM  CASES  SELECTED  BY  THE  ALTUOti. 


A  I. HA  NY 

BANKS  AM)  (OMl'AXY 


T 
I907 


Copyright.  1907, 

BY 

BANKS  AND  COMPANY. 


Us 


PREFACE  TO  THE  FIRST  EDITION. 


One  of  the  first  books  treating  on  a  single  action  at  law  was 
Gilbert  on  Keplevin,  published  in  1756.  This  was  followed  hy 
Wilkinson  on  ]\eplevin,  in  182;"),  and  by  Morris,  the  last  edition 
of  which  is  still  fresh  from  the  press.  The  two  former  works, 
though  valuable  and  exhaustive  treatises  in  their  time,  have 
become  antiquated.  The  following  i)ages  contain  an  attempt  to 
stiJte  the  law  of  replevin  as  generally  applicable  in  this  country  ; 
a  task  attended  with  difficulty,  in  view  of  the  differences  in  load 
laws. 

The  author  has  forborne  to  insert  copies  of  cases  in  the  notes, 
which,  while  it  would  have  swelled  the  number  of  pages,  would 
not,  as  is  believed,  have  been  attended  with  any  corresponding 
advantage. 

The  work  contains  over  five  thousand  references,  and  cites  over 
three  thousand  authorities.  H.  W.  W. 

Peoria,  October  29,  1879. 


;  <t  >  <'  •'  CJ, '%  J 


PREFACE  TO  THE  SECOND  EDITION. 


This  edition  of  Wells  on  Replevin  is  prepared  from  cases  selected 
by  the  author.  I  have  read  with  such  attention  as  I  could  com- 
mand every  one  of  the  cases  cited,  and  personally  verified  the 
citations.  I  hope  that  few  errors  will  be  found  either  in  doctrine 
or  place.  E.  T.  Wells. 

Denver,  Colorado,  Sept.  1906. 


TABLE  OF  CONTENTS. 


CHAPTER    I. 

HISTORICAL  INTRODUCTION. 

SECTION. 

Origin  of  replevin  unknown   1 

First  appearance  as  a  part  of  the  lex  scripta  2 

Its  prior  existence  apparent  3 

The  statute  of  Marlbridge   4 

Originally  an  action  to  test  the  legality  of  a  distress   5 

Distresses     6 

Usually  for  rent    7 

Could  not  be  sold   8 

Abuses  of  the  right  of  distress   9 

Replevin   defined    10 

The  writ  not  returnable,  but  gave  the  sheriff  power  to  try  the  case  11 
If  the  defendant  claim  to  own  the  property,  the  sheriff  could  not 

proceed    12 

Alias  and  pliiries  writs  and  the  practice.     PInries  always  return- 
able;  the  reason  therefor  13 

Cattle  driven  within  a  liberty — the  writ  non  omittas   14 

The  writ  issued  only  at  Westminster 1') 

Delay   occasioned    thereby    It) 

Replevin  by  plaint,  sheriff  authorized  to  proceed  without  writ   .  .  17 

Proceeding  in  case  of  resistance  IS 

In  case  of  no  resistance  II' 

Ancient  method  of  trial   2u 

Both  parties  actors  or  plaintiffs   "1 

Avowry  and  cognizance    22 

Justified  the  taking   23 

Nc/TE  I. — For  u'tiat  the  net  ion  lien  ;  dociimentH pnu^'        ~'' 

Projtertirn  ]>eriitining  to  jjublic  ojjlrer '•  ^0 

liod)/  of  (IfcroHi'd  pt'VHOii "  SO 

Fiuililinys,  Jh-tureH.     (h-nrriilly -fc" 

Fi.rliiren,  hetirii-n  venilor  and  vniilfc "  ;?.'* 

FixtuvfH,  ii.-i  liftii'i'en  vendor  i>f  rfinttrl  mid 

In  lid  niriiiT .W 

\  II 


viii  CONTENTS. 

SECTION. 

Note  I. — Continued. 

lieturen  mortgagor  and  mortgagee page  31 

Between  landlord  and  tenant "  32 

Fences  "  3S 

Trees,  ores,  etc "  33 

Growing  crops "  34 

Removal  of  the  case  to  the  court  of  King's  bench  24 

The  writ  of  uithernam  or  "  other  distress  "   25 

Defects  in  the  statute  Marlbridge  2fi 

The  statute  of  Westminster.     The  writ  of  second  deliverance  and 

the  first  appearance  of  the  l)ond   27 

Statute  Charles  II 28 

Statute  George   II 29 

Conclusion     30 


CHAPTER    II. 

GENER.XL   PRINCIPLES. 

Definition     .31 

Lies  for  chattels  wrongfully  taken  and  detained  .32 

Recovery  of  the  specific  goods  the  primary,  and  of  value  or  dam- 
ages the  secondary,  object  of  the  action   ?,9, 

It  is  a  mixed  action,  partly  in  rem  and  partly  in  personam Hi 

The  wMJt  is  a  writ  of  right  35 

Different  forms  of  proceeding  in  different  States  substantially  the 

same    .3<> 

Peculiarities  of  the  acticm  and  privileges  of  the  plaintiff..-. ;{7 

Importance    of   the    action    38 

The  right  to  present  possession  the  chief  question  in  controversy  39 

Statutory  provisions  concerning  delivery   10 

Formerly  would  lie  only  for  a  distress  !1  -  !3 

Similarity  between  this  action  and  trespass,  trover  and  detinue.  .  .  44 
Some  characteristics  of  the  action  of  trover  and  trespass  compared 

with    replevin    4.',  4t) 

Distinction  between  trespass,  trover  and  replevin  47  50 

Where  one  takes  forcible  possession  of  his  own  property,  he  may 

be  liable  in  trespass,  but  not  in  replevin   51 

Actual  detention  of  the  goods  necessary  to  sustain  replevin   52 

Replevin  in  cepit,  dctinet  and  detinuct   53 

Note  II. — Natnre  of  the  action,  in  general pftge        50 

Malicious  replevin •'  31 

In  the  different  States "  52 


CONTENTS. 


Note  11.— Continned. 

Statutory  }irohtbitio7is  or  interferences  with 

tlir  action page        54 

Of  the  title  gt'iierally ••  ^j 

Plaint  iff  only  required  to  shou-  title  asagainst 

defendant 

Prior  2>osscssion  uu7ieceiisai'y 

Prior  jyissession  sttfficient  title 

What  facts  constitute  possession 

Plaintiff  must  be  entitled  to  immediate  jx)s- 

,  session  "  ,55 

Prior  jHissession  originating  in  wrong "  59 

Certaintij  of  interest  required "  GO 

Purchaser  at  private  sale '•  60 

Gift "  66 

Hotc  far  transfer  by  plaintiff  imjxiirs  his 

right "  68 

Purchaser  at  execution  sale "  68 

Equitable  title "  69 

Mortgagee  ....   "  69 

Pledgor  and  pledgee "  69 

Partnerships "  70 

Husband  and  icife 

Infant 

Lien 

Officer  in  jtossession  under  process 

Bailor  and  Bailee "  73 

Title  by  finding "  74 

Goods  acquired  in  another  State 

Tilings  severed  from  realty "  74 

Tilings  severed  from  land  in  adx-erse  posses- 
sion       "  74 


Note  IV. — Defences  to  the  action.    Property  in  defendant,  jxige  76 

Properly  in  another '*  76 

Lien '•  77 

FJ.rjiiratiiin  of  plaint  ifl'^s  right "  77 

Itifiincif "  77 

Baiikrn]/tcy "  77 

rjilaufnl  cinid)inat ion    "  78 

Indemnifying  btind,  u n count itntional  stat- 
ute    "  78 

Eijuitable  defenses "  7.V 

Dextrnction  or  Iohh  of  the  goods '*  79 

hilivcry  til  a  st ranger "  79 

J'lmMfsHinii  fnr  a  third  jH-rson    "  SO 

Xon-ilrtfiitinn ,   geiirral    rule "  ,\'n 

yoh-drli  III iini  in  irliiiiii  is  juiHSrHHiiin  .  ...  .V/ 


X  CONTENTS. 

SBCTION. 

Note  lY.  —  Contittned. 

Non-detention,  goods  in  plaintiff's  j)os«es- 

sion page  8S 

Estoppel  to  j)lead  non-detention "  82 

Non-detention,  posxessioii  at  demand "  8S 

Non-detention,  prennviption *'  83 

Nou-deff)ition.  roiistrvctivc  postiession   ..."  84 

Non-dt'inition.  niihnrj'iil  taking "  85 

Non-ditintioii,   transfW  befoi'e  suit "  85 

Non-(lrtentii)ii.     zrrongftil     or    collusii'e 

transfer '♦  85 

Wrongful  taking    54 

The  scope  of  the  investigation  in  this  action  55-57 

CHAPTER  III. 

WHEN    .VND    rOK    WHAT    IT    LIES. 

Replevin  lies  only  for  chattels  58,  59 

Chattels  severed  from  realty   60,  61 

Chattels  may  become  part  of  the  realty   62,  63 

How  far  the  question  as  to  what  is  or  is  not  real  estate  may  be 

litigated   in   replevin    64-67 

Buildings  while  fixed  to  land  are  part  of  the  realty   68 

Articles  severed  from  the  realty 69-72 

Severance  from  realty  does  not  change  title  73 

Growing  crops   74 

Actual  severance  not  necessary  to  give  property  the  character  of 

personality    75,  76 

Chattels  fixed  to  the  land  of  another  without  his  consent 77,  78 

Title  to  real  estate,  when  evidence  in  replevin  79,  80 

Holder  of  colorable  title  cannot  recover  chattels  severed 81 

Defendant  holding  color  of  title   82 

Action  cannot  be  used  to  litigate  title  to  land 83 

Chattels  severed   through   mistake    84 

Chattels  severed  by  a  trespasser   ' 85-87 

Severed  by  one  claiming  to  own  the  land  88 

Summary  of  the  luie  89 

How  far  a  mortgage  on  real  estate  passes  title  to  chattels  severed 

therefrom     90-93 

CHAPTER    IV. 

rL.\INTIK['    MIST    HAVE   THE    RK.IIT   TO    THE    IMMEDIATE    AND    EXCLUSIVE 

rOSSES.SION. 

Plaintiff  must  have  a  right  to  immediate  and  exclusive  possession       94 
Proof  of  wrongful  taking  not  necessary  95 


CONTENTS.  Xi 

The  term  "  property  "  or  "  property  in  the  plaintiff  "  does  not  mean 

absolute   ownership    96 

Right  of  possession  and  ownership  may  be  in  different  persons  ...  97 

Property  of  bailee 9S 

One  entitled  to  possession  for  a  special  purpose   99-101 

General  ownership  not  necessarily  determined  in  the  action 102 

Borrower  cannot  set  up  a  title   : .  103 

Carrier  cannot  show  title  in  third  party  as  a  defense  to  an  action 

by  the  shipper  or  consignee 104 

The  legal  title  will  prevail  over  the  equitable 105 

An  assignee  in  bankruptcy    106 

Right   to  present  possession   does   not  depend   on   former  posses- 
sions      107.  108 

Prior  rightful  possession,  when  sufficient   109-112 

Rightful  possession  evidence  of  title 113 

Conflicting  claims  by  possession 114 

The  posession  must  be  under  a  claim  of  right 115 

But  need  not  be  under  a  claim  of  title.    Finder  of  property 116,  117 

The  lien  of  a  finder  for  reward  offered   118 

Finder  of  a  note  has  no  right  to  collect  it  119 

Where  the  title  is  the  issue,  good  title  must  be  shown  120 

The  nature  of  the  special  property  necessary  to  sustain  replevin  121 

General  owner  usually  entitled  to  possession;  exceptions 122 

Liens    123-125 

The  same.     Taking  up  of  an  estray  126 

Note  V. — Lien,  lioir  acijiiired paO''       ^ I'' 

Iluir  waived  or  luat "  /.'/ 

Right  to  possensioii "  J?J 

EtiforceJiu'ut  of  lien "  ISJ^ 

Several  liens "  l:?.f 

Order  and  jirioritij "  /.'.' 

Note  VI. — Distraint  damage  feasant    "  /.'; 

Goods  lost  at  sea 1 27 

Goods  In   possession  of  one's  servant    1 28 

Contrart  for  purchase  of  property  does  not   necessarily  confer  a 

right  of  possession   219 

An  officer  levying  process  has  special  property,  and   right  to  pos- 

sesHlon     130 

NoTK  Vll. —  Liri/ .    Jtmjr       IT7 

PoHseBHlon  of  a  receiptor  lo  an  officer  i;!l 

An  agent  who  In  reHponHlble  to  the  owner  has  Huffi(  lent  pushi'shloii 

to  RUHtain  replevin    132 

Wrongful  H»'lzMrf'  or  nnlf  l)V  nu  oflli  cr-  (\n<-H  not  jifTfcf  hwium-'h  rl«lit  l.'tU 


xli  CONTENTS. 

CHAPTER    V. 

POSSESSION    1!Y    THK   DKFENDANT. 

.SECTION. 

Replevin  does  not  lie  against  one  not  in  pos.session  of  the  goods. 

Some  exceptions   134.  135 

The  writ  lies  only  for  property  in  existence  136 

Proof  that  the  defendant  was  about  to  lake  possession  will  not  sus- 
tain  replevin    137 

Neglect  to  deliver;  when  not  a  conversion  138,  139 

Taking  under  a  license  not  a  conversion   140 

A  firm  may  be  responsible  for  the  act  of  one  member 141 

Taking  by  an  officer;  when  sufficient  to  render  him  liable  in  this 

action    142 

Possession  by  an  officer  not  possession  of  the  creditor  in  the  writ  143 

Servant  not  usually  liable  for  holding  his  master's  goods 144 

Where  defendant  has  put  the  goods  out  of  his  possession 145 

Or  put  it  out  of  the  officer's  power  to  execute  the  writ  146 

Fraudulent  transfer  of  goods   147 

Clothing  worn  on  the  person  not  subject  to  the  writ  148 

Possession  after  dismissal  of  an  action  of  replevin 149 

Defendant  acquiring  possession  with  plaintiff's  consent ir,n 

Note  YUL—Estopjiel page      138 

The  action  permitted  in  some  States  without  delivery  of  the  goods  151 


CHAPTER   VI. 

.TOINT   OWNERS. 

One  joint  tenant  cannot  sustain  replevin  against  bis  co-tenant. .  .152,  153 
N(iTE  IX. — Tenants  in  common V'HI*'      14-i 

Replevin  does  not  lie  for  an  undivided  interest 154 

Owners  of  separate  interests  cannot  join,  but  joint  owners  must  . .  155 
Action  by  one  of  two  owners  does  not  lie  against  a  stranger  for 

the  joint  property    156,  157 

Landlord  reserving  a  share  of  the   crop  cannot   sustain   replevin 

until  his  share  is  set  apart 158 

Death  of  one  partner,  who  entitled  to  the  partnership  property.  159.  160 
By  agreement  of  all  joint  owners  the  right  to  possession  may  be  in 

one     161 

The  severance  of  the  joint  tenancy  by  agreement 162 

Severance  by  the  act  of  one  joint  tenant 163 


CONTENTS.  xiil 

SECTION. 

Purchaser  of  one  joint  tenants  interest  at  sheriff's  sale 1C4 

Sale  by  one  partner  of  his  interest  in  goods  165 

An  officer  with  process  against  one  member  of  a  firm  may  seize  all 

the  partnership  goods   16»>.  167 


CHAPTER  VII. 

DESCRirTION,    IDENTITY    OF    THE   GOODS. 

Plaintiff  must  prove  himself  the  owner  of  the  identical  property 

sued  for   168 

The  writ  must  describe  the  property  particularly 1'"'9 

The  property  must  be  capable  of  delivery   170 

Strictness  of  the  rule  in  regard  to  description,  and  the  reason  for 

it     ITl 

The  same.     A    description  good  in  trespass  or  trover  not  sufficient 

in    replevin    172-174 

Note  X. — Descriptian  of  the  goods jxtw      155 

When  the  sufficiency  of  description  is  a  question  for  the  jury  ...  175 

Synonymous  descriptions.     Illustrations  of,  and   when   allowable  176 

The  rule  as  to  certainty  of  description   177-1 79 

Descriptions  whicb  may  refer  to  kind  or  quantity  IS'i 

A  quantity  described  as  "  about  "  four  hundred  tons  ISl 

The  proof  as  to  description  must  correspond  with  the  writ 182 

Exact  quantity  need  not  be  given  where  the  particular  property  is 

indicated     1S3 

Writ  of  return  and  verdict  may  follow  declaration  as  to  description  1S4 

When  objections  to  insufficiency  of  description  must  be  taken  ....  185 
Replevin  does  not  lie  for  goods  sold,  unless  they  are  in  some  way 

separated  from  the  others  or  In  some  way  iilentified 186  l'=".« 

The  same.    Selections  by  purchaser;  when  sufficient  190.  Hil 

Property  ai  quired  by  a  verbal  gift  without  delivery  192 

The  general  rule  applicable  in  the  cases  19:{ 

Symbolic    delivery     194 

Goods  distlngulKhed  by  marks  or  by  separation 195 


CHAPTER  Vm. 

coKrusio.v  OF  (.iH»(»s  OK  mi  1 1  hint  ownfks — ('iian(;k  of  h>rm. 

Mixtures  or  confusion  of  gofids  b<](iii;;iiiK  to  dlfTiMfrit  owncrH  ....      196 
Willful  mixture.     All   lidonKH  to  Ilo-  iimo<  fiii  party   197   2(H 

NOTK   XI.  —  (UnifiiHtnii  nf  i/oihIx .  ../"'f/*'         /T/ 


xlv  CONTENTS. 

SECTION. 

Changing  marks  to  produce  confusion   202 

Mixture  of  grain;  when  each  owner  may  take  his  share 203-207 

Where  an  officer  is  induced  by  fraud  of  a  third  party  to  levy  on 

goods  not  the  property  of  the  defendant  in  the  process 208,  209 

Change  of  form,  and  the  effect  of  such  change  on  the  rights  of  the 

parties     210 

Rule  of  the  civil  law 211 

Goods  taken  by  mistake   212 

Change  of  form  does  not  change  the  title.     Where  the  goods  can 

be  identified,  owner  may  sustain  replevin 213,  214 

Goods  taken  by  a  thief  or  trespasser,  and  enhanced  in  value  by  his 

skill  or  labor 2ir) 

Rule  where  the  goods  come  to  the  hand  of  an  innocent  purchaser  216 
Owner   should   reclaim   his   property  before  its   value   is   greatly 

enhanced    217 

Where  the  taking  is  wrong,  the  taker  cannot  change  the  title  by 

any  change  in  the  property  218 

Measure  of  damages  in  such  cases 219 

Change  of  form  by  agreement  does  not  affect  the  rights  of  the 

parties     220 

Property  taken  and  annexed  to  real  estate  or  other  thing  which 

forms    the    principal    221 

Description  to  be  employed  where  the  property  has  undergone  a 

change    222 


CHAPTER   IX. 

CHATTEL    MORTGAGE. 

Rights  of  a  mortgagee  in  a  chattel  mortgage 222a 

The  mortgageor  has  an  interest  which  may  be  seized  and  sold  on 

execution     222?> 

Rights  of  the  mortgagee  against  third  parties 223 

Note  XU.— Nature  of  Mortgagee's  Estate lJ«sre  1S6 

What  incidents  pass  by  mortgage "  1S6 

Wliat  is  the  subject  of  mortgage "  186 

Parties   "  1S7 

Irregular  instrnments "  JS7 

Mortgage  for  pxrchase  money "  1S9 

Securing  several  notes "  J89 

For  indemnity "  189 

To  secure  future  adravcps  or  debts  to 

accrue  In  fl:e  future "  IDO 

Foreign  moilgnge "  ir>0 


CONTENTS. 


Note  XQ.—Contivrted. 

Mortgage  by  partner page  1^0 

Ejcecution,  acceptance "  191 

Authentication,  aeknou-hdgmoit "  191 

Record,  notice,  precedince "  19^ 

Renetral "  195 

Siibse  jncnili/  iicqnire({  or  snbstitutcd goods.  "  196 

Mortgagre  in  possession  n-ith  jMU'er  to  sell.  "  197 
Mortgagor  rcfaining  j)ossession    contrary 

to  the  mortgage. "  199 

Liens  created  by  the  mortgagor..   "  SOO 

Insecurity  clause "  ~01 

Descrijition  and  character  of  the  debt "  203 

Assignment "  20J 

Descripf  ion  of  the  goods "  £04 

Mortgagee'fi  right  to  jjossession "  207 

Defects  cnrcd  by  possession "  20S 

Mortgagor's  right  to  possession "  209 

Mortgagor's  interest  leviable "  209 

Releasf  or  wairer  of  the  lien "  210 

Payment "  2}  I 

Bankrujitry  of  the  mortgagor "  .'11 

Foreclosure  pending  replevin..'. "  ^12 

Sale  under  the  pou-er "  21S 

Mortgage  of  wife's  separate  property "  21S 

Conditional  sale '*  213 


CHAPTER  X. 


PROPERTY    SEIZFH)    FOR    A    TAX 


Property  seized  for  the  payment  of  a  tax  not  repleviahle 224 

Irregularity  in  using  the  warrant  docs  not  change  the  rule 22r> 

Nor  the  fact  that  no  taxes  are  due  from  the  party  whose  goods  are 

seized     22n 

Prohibition  extends  to  goods  seized  for  tax  due  the  United  States 

or  an  incorporated  village   227 

The  usual  form  of  the  prohibition  Is  a  requirement  in  the  adidavit     22^ 
The  Jealousy  with  which  the  courts  look  upon  attempts  to  evade 

this  requirement   220 

Questions  of  double  assessment  cannot  be  tried  In  this  action     .  .     230 
Property  seized  for  the  payment  of  a  tax  due  from  another  per- 
son      231.2X2 

The  prohibition  of  this  remedy  does  not  affect  the  rights  of  the 

parly  to  employ  any  other  proper  means   .  '-">^ 


Xvi  CONTENTS. 

SKCTION. 

Tlu'  action  permitted  where  the  plaintiff  does  not  ask  delivery  of 

the  property   234 

The  prohibition  does  not  extend  to  a  purchaser  at  tax  sale 235 

The  l)are  assertion  of  the  defendant  that  the  goods  are  seized  for 

tax  not  suffli-ient   23G 

The  warrant  must  be  reRular  on  its  fare,  and  purport  to  be  issued 

by  competent  authority  237 

It  must  appear  to  be  for  a  tax  which  by  legal  possibility  may  be 

valid    238 

Note   XUl.— Goods  not  liublr  for  the  ta.r j'Of/e  :'?7 

Afixfiice  of  lair "  ?.:'7 

Inuujiilarities "  227 

Fro  Hit  ♦ '  S29 

Lirii  of  the  ta.r "  229 

Ta.v  against  II  tliird  j)ersou  in  jtossession 

of  tlie  ijoods "  2?ff 

Pin/ini'iit  of  the  tax "  229 

Excessire  ta.e "  2.!9 

Evidence '•  2"i'J 

Of  the  judgment "  2.10 

The  seizure  must  be  by  an  offlcer  239 

Where  an  officer  goes  out  of  his  bailiwick   240 

The  prohibition  extends  to  goods  seized  for  payment  of  a  fine  ....  241 

Replevin  against  a  purchaser  242 

Note  XIV. — Animals  imponnded page       231 


CHAPTER  XI. 

GOODS    IN    THK   CISTODY   OF   THE    LAW. 

Replevin  does  not  lie  for  goods  in  the  custody  of  the  law 243 

Limitation  upon  this  rule   244 

Lies  for  goods  wrongfully  seized  by  an  officer  upon  process 245 

Of  the  right  of  a  person  to  take  possession  of  his  goods  which  have 

been   wrongfully  seized  by  an  officer    246 

Replevin  does  not  lie  for  goods  in  the  hands  of  a  receiver  of  court  247 
Does  not  lie  at  the  suit  of  a  defendant  in  execution  against  the 

sheriff    248 

Nor  the  suit  of  a  grantee  of  such  defendant  after  the  seizure  249,  250 

Qualifi.  ations  of  the   rule 251 

Does  not  lie  for  liquors  seized  under  an  act  to  prevent  the  sale  of 

intoxicating   beverages    252 

But  the  writ  was  allowed  where  the  seizure  was  under  an  ordin- 
ance which  had  been  declared  void  by  a  court    of  competent 

jurisdiction    253 


CONTENTS.  xvii 

SECTION. 

Does  not  lie  for  cattle  legally  impounded  254 

Lies  for  powder  seized  under  an  ordinance  prohibiting  its  intro- 
duction in  large  quantities  into  a  city  255 

Does  not  lie  for  property  taken  on  a  writ  of  replevin  until  after 

the  former  case  is  decided   256 

The  distinction  between  a  writ  of  replevin  and  an  execution  or 

attachment     257 

Cross  replevins   not  allowed    258,  259 

The  sheriff  charged  with  the  execution  of  process  must  obey   it 

at  his  peril   260,  261 

Replevin  lies  for  goods  wrongfully  sold  by  sheriff  on  execution..  262 
Distinction  between  replevin  for  the  goods  and  an  action  against 

the  officer  as  a  trespasser   263 

Writ  of  replevin.     When  and  how  far  a  protection  to  the  officer 

serving    it 264 

Whether   the   writ   authorizes  a   seizure    of    the    goods    from    a 

stranger     265,  266 

Writ  of  return  authorizes  seizure  only  from  the  person  named  ....  267 
Replevin  lies  for  exempt  property  wrongfully  seized   268 

Note  XV.— Exempt  Goods page       250 

The  aid  of  the  statute  must  be  invoked 269 

The  exemption  a  personal  privilege  270 

Damages  and  costs  in  such  cases   271 

Jurisdiction    in    replevin,    where    goods    have    been    wrongfully 

seized    272,  273 

The  rule  in  Freeman  v.  Howe   274 

The    doctrine    in    this    case    considered    275,  282 

Note  XVI. — Jtuindiction  ;  of  the  Federal  Courts l>aye  .'05 

Jurindiction  generally "  -?«5 

Conaent  cannot  confer "  .'00 

Upon  wltat  the  jurisdiction  depends "  :'.'0G 

How  defect  of  jurisdiction   may  Ite  vaiiml 

or  cured . "  :^00 

How  jurisdiction  may  he  ousted  or  lost "  "07 

Plea  to  the  jurisdiction "  Sti7 

Remittitur "  SOT 

Conflicts  of  jurisdiction •*  .i07 

The  power,  duty  and   responsibility  of  the  shcriiT  in   serving  the 

writ  of  replevin    2S3 

He  must  Bee  that  the  writ  is  In  form   2.S4 

And  that  It  iHHue  from  a  court  of  competent  Jurisdiction  to  issue 

such   a   writ    28'! 

The  writ  does  not  authorize  a  Hel/.iire  of  gnodn  from  the  pei-Hon 

of  the  defendant  -H6 


xviii  CONTENTS. 

SBCriON. 

The   right  of  an   offlcor  to  break  and   enter   a  dwelling  to   take 

goods   287 

Parties  bound  to  know  the  sheriff 288 

Duty  of  the  sheriff  to  take  bond;    his  liability  in  respect  to  the 

bondsmen     289 

Kxtent  of  the  sheriff's  liability    '. 2fl0 

Return  by  sheriff  of  goods  wrongfully  seized  by  him    291 

Duty  of  a  sheriff  on  receiving  a  writ  of  replevin   2!>2 

Duty  of  the  sheriff  with  respect  to  serving  articles  claimed  to  be 

real  estate   2!)3 

The  liability  of  the  officer  a  personal  one  2!)4 

The  sheriff  liable  for  the  acts  of  his  deputies 295 

Disputes   between    deputies    of    the   same   sheriff    settled    by    the 

sheriff    2rifi 

The  officer's  retur.i    297 

As  to  the  service  of  a  writ  of  replevin  298 

Effect  of  the  replevin  of  property  seized  on  execution   299 

Special  property  created  by  a  levy  on  goods 300 

Justification  by  an  officer  301 

Note  XVII. — Justification  ;  generally pcige  280 

How  far  a  stranger  to  the  writ  may  assail 

it,  or  the,  officers  conduct ."  281 

Process  fair  on  its  face "  281 

WJiere  an  officer  Jcnoivs  of  the  illegality  of 

the  process "  282 

Justification  under  the  writ  of  replevin.. . .  "  282 

Abuse  of  process "  283 

Of  the  plea "  283 

Of  the  evidence "  2SJi. 

The   defense   by   sheriff   when   goods   seized    are    replevied    from 

him     302,  303 


CHAPTER  XII. 

TAKINr,  BY  THEFT,  FORCE  OR  FRAUD. 

Taking  by  theft,  trespass  or  fraud  304 

Thief  acquires  no  title  to  the  stolen  goods 305 

Sale  in  market  overt  passed  title  306 

Markets  overt  unknown  in  this  country   307 

Replevin  of  stolen   goods   does  not  depend   on   the  conviction   of 

the    thief    308 


CONTENTS.  xix 

SECTION. 

A  trespasser  acquires  no  title,  and  can  convey  none  by  any  sale  . .  309 
Replevin  lies  for  goods  obtained  by  fraud,  even   from  one  who 

innocently    purchases    HIO 

Innocent  purchaser  from  a  thief  may  elect  to  affirm  the  contract 

as    against    the    thief    311 

Replevin   by   the    owner    for    goods    sold    by    a    bailee    without 

authority    r;i2 

The  same.     Rights  and  Authority  of  a  bailee  313,  314 

Note  XVIII.— Bailee page       29.'t 

Replevin  lies  against  a  carrier  for  goods  wrongfully  taken  and 
committed  to  his  care,  and  has  no  lien  for  freight  on  such 
goods     315 

Replevin  lies  where  a  bailee  without  authority  pledges  goods  in 

his  care   316 

When  agent  or  bailee  with  authority  sells  at  a  less  price  than  his 

instructions    warrant    317 

Fraudulent  purchaser  takes  a  title  voidable  at  the  election  of  the 

defrauded   vendee    318 

Note  XlX.—FraiKhihnI  Purchaser />ofl'<'        ■"■'>' 

Observations  on  the  rule    310.  321 

Not  material  when  the  fraudulent  representations  were  made....  322 
Coods    paid    for    with    a    worthless    note,    counterfeit    money,    or 

stolen  goods    323 

Replevin  against  attaching  creditors   in  such  cases    324 

Or  against  an  assignee  for  the  benefit  of  creditors  325 

Does  not   lie   for  goods  sold   to  enable   the   purchaser   to   violate 

the    law,    even    though    there    may    have    been    fraud    in    the 

purchase  326 

For  goods  sold  to  an  infant,  when  he  avoids  payment  327 

For  goods  obtained  by  duress    328 

The  general  rule  stated  329 

Fraiidulent  intention  of  purchaser  must  exist  to  avoid  a  sale  ....  330 
Diligence    required   of  one   who    would    rescind   a   sale   by    fraud, 

return  or  tender  of  the  consideration   331 

What  amounts  to  a  return  of  property   332 

Does   not    lie   against    an    innocent    purchaser   from    a   fraudulent 

purchaser     333 

The  diHllnction  between  acquiring  goods  by  theft  or  ircspasa  and 

fraudulent    purchase    334-337 

Rule  where  goods  fraudulently  purchased  are  taken  in  payment  of 

a    pre-existing    deljt 338 

SaJcH   of   gooflH   upon   ( ondltlon    339 

Nonpayment  for  goods  Kold  on  credit  does  not  warriml  ii  n-HclHulon 

of   th«'   contract    ;!li» 


XX.  CONTENTS. 

SECTION. 

Rule  where  the  vendor  stipulates  to  retain  title  or  possession  until 

payment    341,  342 

Waiver  of  conditions  of  sale   343 

Note  XX. — Dona-fide  purchaser  protected pu<je  ^14 

Bona- fide  jnn'chaser  not  protected "  3J5 

Negotiable  jmper,  corporate  stocks,  etc "  315 

Who  is  a  hona-fide  purchaser "  310 

Burden  of  proof "  317 


CHAPTER  XIII. 

TIIK     DKMAM). 

General  principles  of  the  law  requiring  a  demand 344 

Demand  not  necessary  when  the  defendant's  possession  is  wrong- 
ful, necessary  in  all  cases  when  it  is  rightful  345,  347 

Note  XXI. — In  what  cases  demand  is  necessart/ pf'Sfe        3.?0 

Note  XXII. — In  ichat  cases  demand  is  not  necessary. ...     "  323 

Where  taking  is  by  a  thief  or  trespasser,  from  a  thief  or  tres- 
passer      348 

Proof  of  a  wrongful  taking  always  sufficient 349 

The  legal  effect  of  a  demand  and  refusal   350 

Where  goods  are   converted   no   demand   necessary.     Meaning   of 

the  term  "  conversion  "  as  here  used    351 

What  amounts  to  a  conversion    352 

There  can  be  no  conversion  without  control  over,  or  interference 

with,  the  property   353,  35.') 

Purchasers  at  sheriff's  sale 35G 

Possession  taken  only  as  an  act  of  charity  or  to  preserve  property, 

not  a  conversion   357 

Borrower   cannot  set  up   title   in   himself    358 

Finder  of  property  entitled  to  a  demand   359 

The  taker  up   of  stray  animals    360 

Purchaser  of  property  payable  in   installments,  entitled  to  a  de- 
mand before  forfeiture    301 

Unauthorized  interference  with   the  goods  of  another    3fi2 

Hire  of  property  for  a  special  purpose  may  not  use  it  for  another. .  3G3 

Innocent  receiver  of  stolen  goods  may  be  liable  for  conversion. .  3C4 

What  is  rightful  possession  305 

Fraudulent   purchaser,   or    attaching   creditor   of,    not   entitled  to 

demand     366 


CONTENTS.  xxi 

SECTION. 

A  fraudulent  taking  always  wrongful    367 

Necessary  where  an   officer  seizes  goods  from   defendant  named 

in   his  process    368 

Contra  when  he  seize  goods  from  another 369 

Inn-keeper,  or  carrier,  when  entitled  to  a  demand  370 

When  demand  must  be  made   371 

The  effect  of  failure  to  prove  demand  372 

Waiver  of  demand  by  defendant    373 

Claim  of  ownership  by  defendant   374 

On  whom  the  demand  must  be  made 375 

No  particular  form  necessary  37t', 

General  rules  governing  the  demand  37T,  37S 

Demand  by  a  father  or  guardian  379 

Refusal  to  deliver,  the  true  grounds  must  be  stated  3S0 

The  same.     What  is  a  sufficient  excuse  for  non-delivery 381,  383 


CHAPTER  XIV. 

THK   BOND. 

No  bond  required  by  common  law   384 

The  English  statutes   385 

The   English   statutes   the   basis  of  the   law   concerning  bond   in 

this   country    386 

Assignment  of  the  bond  to  defendant  3S7 

The  bond  a  prerequisite    388 

Permission  to  prosecute  as  a  pauper  does  not  excuse  giving  bond  389 

Wealth  of  plaintiff  no  excuse   390 

Delivery  cannot  be  made  without  bond  given    391 

The  bond  must  conform  to  the  statute  392 

The  bond  not  necessary  to  the  trial    393 

Where  the  sheriff  is  a  party   394 

Defendant  may  give  bond  and  retain  the  property 395 

Note  XXIII. —  Who   nun/  Tt'fai}i  the  gooils  mulcr  forth- 

cinniii(/  bond }^0<'  ■''■'••> 

Dcfpivliint' s  rif/lit  to  nlnin  tin'  goods.. .  "  .i.'i.l 

E.rrctition  (iiid  frntif  of  tin-  Intud "  .%'>,'! 

Dntif  mid  liahilit!/  <</  the  ttfflrer "  .7.^4 

Count rurt ion  of  tin-  lumd "  •'i.'H 

Effect  of  the  Ixnid "  .W^ 

Ameudinntt  of  ilir  Imnd "  .t/iS 

PlfddiufiH "  .IW 

JJnlrilHy  tnid  right h  of  mirrt]/,  defenaet.  "  .tfifi 

I)efrctn  in  Ixmil "  t.W 

Irreifnlnritiin  in   Ihr  rrjileriit    ^'iS 


xxli  CONTENTS. 

si;('Tii>\. 

Bond  not  necessary  where  the  plaintiff  does  not  ask  delivery   ....  :!!»•; 

Description   of   the   bond    397 

Objects  and  purposes  of  the  bond    398 

The  return  of  (he  bond  with  the  writ  399 

Amount  of  penalty  in  the  bond,  how  ascertained  400 

Sheriff  may  take  the  property  for  purpose  of  appraisement 401 

Sheriff  not  required  to  prepare  bond,  duty  of  the  party 402 

To    whom    payable    403 

Though  defei  tive  as  a  statutory  bond  it  may  be  good  as  a  common 

law  obligation   404,  4o.'i 

By  whom  it  must  be  executed   406 

Bond  may  be  executed  by  a  stranger  to  the  suit  407 

Note  XXiy.—E.vecutioti  >>f  the  bond .  .joage       sen 

How  executed   408 

When  it  may  be  amended  409 

Defect  in  the  bond,  when  and  how  taken  advantage  of 410 

Requisities  of  the  bond    411,  412 

The  conditions  separate  and  independent  of  each  other 413 

The  conditions  to  prosecute  without  delay 411 

To  prosecute  with  effect  41  ij 

What  is  prosecution  with  effect 410 

Prosecution    in    inferior    court   when    the   case    is    appealed,    not 

sufficient     417 

Death  of  party  pending  suit 418 

The  condition  to  return   419 

Offer  to   return   unaccompanied   by   a   tender,   not  a  performance  420 

This  condition  requires  the  return  of  the  identical  goods 421 

In  as  good  order  as  when  taken    422 

Note  XXY.—Dnty  to  retuni jyage        375 

Diitij  to  (iccfpt '■  375 

Time  nf  return "  375 

Manner  nf  retiirii   "  376 

Condition  of  flw  goods  ttt  tii>ie  of  return..     "  376 

Option  to  return "  377 

Equiralent  in  other  goods "  377 

Partial  return "  378 

Effect  of  return "  379 

Judgment  for  a  return  a  breach  of  the  condition   423 

The  bond  does  not  relate  to  other  claims  than  the  suit  in  which 

it   is   given    424 

Actual  delivery  of  the  goods  on  the  writ  precedes  liability  on  the 

bond     425 

Actual  return  in  as  good  oruer  a  compliance  with  this  condition..  426 


CONTENTS.  xxiii 

SECTION. 

General  principles  governing  the  construction  of  the  bond 427 

Right  of  action  accrues  upon  a  failure  to  keep  any  of  the  con- 
ditions       41IS 

Rights  of  the  securities    429  431 

Any  material  alteration  in  the  bond  avoids  it 432 

The  same.     Securities  bound  by  acts  of  the  principal 433 

But  a  settlement  does  not  bind  nor  discharge  them  434 

Submission  to  arbitration  does  not  bind  securities 43.") 

Technical  defenses  to  bond  not  favored   436,  437 

The  liability  of  a  guardian  personal  4?.S 

Where  the  words  are  ambiguous  the  intent  will  govern    4o:t 

Proceedings  on  the  bond  governed  by  statute    4  !0 

Debt  a  proper  form  of  action    411 

Assignment  of  the  breaches    412 

Proceedings  in  the  replevin  essential  to  sustain  suit  on  the  bond.  443 

The  material  facts  to  be  set  up 444 

When  bond  is  lost  from   the  files    41.5 

Defense  to  suit  on  bond  4  !t> 

When  ownership  of  property  is  settled  in  the  replevin  suit P7 

When  not  so  settled,  it  may  be  set  up  in  suit  on  the  bond !4S 

Defense  which  should  be  made  in  the  replevin  suit   449 

Miscellaneous  rules  in  suit  on  bond    4;j.) 

Variation  between  bond  and  affidavit   in  description,  no  defense,  4.">1 

Submission  of  the  replevin  suit  to  arbitration  is  a  defense 4.')2 

Value  of  the  property  stated  in  bond  how  far  binding 453 

Where  the  value  of  a  number  of  articles  is  stated  at  one  gross 

sum    4"4 

Effect  of  the  death  or  destruction  of  the  property  4.'.."j 

Parties  to  suit  on  bond  cannot  discharge  it  to  the  injury  of  the 

sheriff   4.".il 

Damage  on  bond  how  assessed   4ri7  4.");t 

Release  of  bond  by  seizure  on  another  writ  pending  suit 4t;o 

Limitation  to  suit  on  bond  4t!l 

Suit  on,  by  sheriff,  may  be  in  hi.s  individual  name 4t:2 

Note  XXVI. — Action  <>ii  the  linitl.     I'urties pnw         •'•''■'»' 

Pleu(lin{fM  1)/  till-  pltiiittijf. '  .',nii 

PleadititfH  nf  ilifemtdtit 5"" 

De/eiisi  •:  In  tin'  III  lion .{".' 

Efpiiti'l}li-  llrfiHSIH 4"'' 

Erlilfiirr 4"> 

MeilKltif  nf  ilillltilffiH .{/" 

CnstM  iiii'l  iliHliiirHfiiirntn. "  -{/••' 

Jnii'pneiit  mi  tlii'  IhhuI "  -J/J 

Sniinniirii  jiiiliiinent 414 

Mitiijiitlon  nf  iliiiiiiiiif» 4I'> 


xxiv  CONTENTS. 

CHAPTER  XV. 

THE  WRIT. 

SECTION. 

To  whom  addressed,  and  the  mandate   463 

Must  contain  summons  to  the  defendant    464 

Must  describe  the  particular  property    465 

Alias    writ    466 

Writ  lies   for  property   in   the  jurisdiclion   of  the  court  when   it 

issued     467 

The  return  of  the  writ  468 

At  common  law  plaintiff  took  the  property  as  his  own,  and  might 

so  dispose  of  it    469 

Property  now  regarded  ;is  in  the  custody  of  the  law 470 

Injury  to  goods  while  in  plaintiff's  possession   471 

Rights  of  the  plaintiff  to  property  taken  on  the  writ 472.  473 

Delivery  on  the  writ  does  not  confer  title  474 

Where  the  action  is  for  a  distress   475 

The  effect  of  the  writ  on  the  rights  of  the  parties  pending  the 

suit     476,  480 

Note  XXVII. — Writ,  duty  In  iftfuie page  JfiS 

Frcnue  of  vrit "  j^g 

\Mien  objections  must  be  taken. . .  "  ^9 

Amev(l)UPiit  to  the  u'rit "  /^29 

Execution  of  the  writ "  ^9 

Return  of  the  ivrit "  Jf3i 

Recajition "  ^i 


CHAPTER    XVI. 

THE  RETURN. 

The  Return.     General   principles    481,  482 

Plaintiff  not  liable  for,  unless  so  ordered  by  the  court 483 

Duty  of  plaintiff  when  return  is  adjudged   484 

Return  ordered  only  where  return  appears  just 485 

Return  may  be  adjudged  to  one  of  several  defendants 486 

Adjudged  only  when  the  defendant  claims  it 487,  488 

Formal   prayer  for   return   not   essential    489-490 

Judgment    for    value    rendered    only    where    a    return    would    be 

proper     491 

When  a  defendant  pleads  property  in  a  third  person   492,  493 

Judgment  for  return  does  not  settle  the  question  of  title 494 

Judgment   for    return    generally    follows    a    verdict    for    the    de- 
fendant          495 


CONTENTS.  XXV 

SECTION. 

The  rights  of  the  parties  at  the  time  the  return   is  asked  will 

govern     49G 

The  same.     Illustrations  of  the  rule   497,  49S 

Never  ordered  unless  it  appear  that  the  plaintiff  obtains  deliver- 
ance   on    the    writ    499 

Return  of  the  young  of  animals  born  after  suit  began  500 

Where  defendant  avoids  trial  on  the  merits  501-504 

Liquor  sold  to  enable  the  vendee  to  violate  the  law  505 

When  the  parties  are  joint  tenants  50(5 

When  the  property  is  lost  or  destroyed    507 

When  the  question  of  return  should  be  determined   508 

Return  or  delivery  in  States  adopting  the  code  509 

The  writ  of  return  must  describe  the  goods  510 


CHAPTER  XVII. 

I).VM.\(iES. 

By    common     law     damages     allowed     to     plaintiff,     not    to     de- 
fendant     511 

General  rule  now  is  that  damages  are  awarded  to  the  successful 

party     512 

Allowed  only  as  an  incident  to  the  proceedings  for  possession  ....  513 

.May  be  allowed  to  bcth  parties   514,  515 

Plaintiff  cannot  dismiss  so  as  to  avoid  a  hearing  in  the  question  of 

damages    or    return    51  <> 

Note  XXVIII. — Discontinuance  of  the  action I>nge        J^ffS 

Where  the  suit  is  dismissed  for  informality    517-519 

The  rules  applicable  in  actions  of  torts  generally  apply  In  replevin. 

Distinctions  stated    520 

Damages  to  plaintiff   521 

Damages  to  defendant  not  allowed  unless  a  return  of  the  property 

is  claimed    522-524 

The  rules  for  estimating  damages  52.") 

Nominal    damages    520.  527 

Party  claiming  damages  must  show  the  extent  of  his  injuries  by 

proof     628,  529 

Compensation  the  objc(  t  of  the  award  5"0 

How  th«;  amount  of  conipcriKation   Is  ascertained    5:!! 

When  the  goods  have  (  hiinged  in  value   .':!2 

The   rule   giving   conipenHution    applies   only    In    <  ascH    wljerc    mi 

malice  or  willful  wrong  Im  charged .■..;;! 

When  taking  waH  wrongful,  damage  estimated  from  the  time  of 

taking,  otherwise  from  the  time  of  convcrHlon 'I 


xxvi  CONTENTS. 

SECTIOV. 

Depreciation  in  value  a  proper  element  of  damages  535 

The  rule  not  uniform  536 

Interest  as  a  measure  of  diiniages  537 

How  assessed    538 

When  a  part  of  the  goods  only  are  found  539 

In  suit  on  bond   540 

When  the  suit  is  concerning  the  validity  of  a  sale   541 

Where  defendant  is  a  stake  holder  542 

Value  of  property  when  allowed  on  damages   543,  544 

When  value  is  regarded  as  attaching   545 

Value  at  the  time  of  conversion   54fi,  547 

The  rule  is  applicable  when  the  value  of  the  property  is  stable. 

Rule  when  the  value  is  changing 548 

Thp  highest  value  after  taking  and  before  trial  549-552 

Qualifications  of  the  rule.     Suit  must  be  brought  within  a  reason- 
able  time    553,  554 

What  is  the  highest  market  value   555 

Further  qualifications  of  the  rule  556 

Measure  of  damages  in  suit  for  a  note  or  bill  557-559 

Value  of  coin  sometimes  estimated  in  currency 5.:0 

Damages  occasioned  by  party's  own  act  not  allowable 501 

The  place  where  the  value  is  considered  attaching  502 

The  same.    General  rule  is  value  where  the  goods  were  detained, 

value  in  another  market  may  be  evidence  563 

The  same.     Expense  of  transportation,  etc 5G4-566 

Trepasser  cannot  recover  for  his  labor  in  increasing  the  value  of 

goods   567 

Or  mal<e  a  profit  out  of  his  wrongful  taking 568 

Statement  of  value  in  the  affidavit  usually  binds  the  plaintiff,  but 

not  the  defendant   569 

Appraisement  does  not  bind  either  party  570 

Special  damages  must  be  specially  pleaded    571 

Loss  by  interruption  of  business 572,  573 

Loss  of  real  or  probable  profits 574 

Party  claiming  damages  must  do  what  he  can  to  avoid  loss 575 

Expense,  counsel  fees,  etc 576,  577 

Expense  of  taking  and  moving  the  property 578 


CHAPTER    XVIII. 

D.\MAGES,   COXTIMED. 

Value  of  the  use  when  proper  to  be  allowed  579 

This  applies  only  in  replevin   580 

The  same.    Not  allowed  a  pledgee,  or  an  officer  of  the  law 581,  582 


CONTENTS.  xxvii 

SKCTION. 

The  same.    Not  allowed  unless  the  property  is  rhiefly  valuable  for 

its  use  583 

Where  the  successful  party  has  only  a  limited  interest  584-586 

The  same.    As  between  the  owner  of  a  limited  interest  and  an  in- 
truder     587-589 

Damages  against  officer  tor  wrongful  seizure 590 

The  same.     Against  officer  acting  in  good  faith 5'.»1 

The  same.     Officer  acting  with  malice    592 

The  same.     Where  the  suit  is  by  the  general  owner  593 

The  same.     Where  the  suit  is  by  one  without  right   59 1 

Damage  against  offiier  for  losing  bond   "9." 

The  same.     For  other  failure  in  his  duty   r.90 

In  suits  between  different  officers 597 

Damages  between  joint  owners  59.S.  ri99 

Effect  of  the  death  or  destruction  of  the  property CO(t  HOI 

The  same.     Death  of  s'aves  pending  suit  does  not  affect  the  right 

to  judgment  for  value   602,  603 

Judgment  when  the  property  is  lost  or  destroyed  604 

Damages  only  allowed  where  the  defendant  is  entitled  to  a  return     605 
Option  of  the  defendant  to  pay  value  or  return  the  goods.     When 

allowed   606 

Damages  to  compel  return   6o7 

When  and  how  assessed  608.  6119 

Value  and  damages  should  be  separately  assessed iio 

Recovery  cannot  be  for  a  greater  sum  than  is  claimed  "ill 

Damages  for  property  severed  from  real  estate,  value  as  a  »hat 

tel    .■ 612.  613 

The  same.    Coal  dug  or  timber  cut  614 

The  circumstances  under  which  the  severance  was  made,  material 

to  be  considered  615 

Trees  cut  on  land  of  another  by  mistake  616 

The   general    rule   stated,    applicable    to    various   changes    in    the 

property    <>17 

Vindictive  damages,  when  alloweil   618.  iil9 

The  same.     The  meaning  of  the   terms  punitive,  exemplary.  an<l 

vindictive  6."i  621 

The  same.    Actual  mali<e  or  gross  carelessness  must  be  hhown  ....     6.2 

No  general  rule  exist s  for  estimating  623  626 

Party  who  acts  in  defiance  of  another's  lights.  Is  responsible  for 

all   lonsequences    627 

Vindictive  damages  against  offlct-rs  of  tin-  law   <i28.  629 

Accounts  cannot  be  ui'jutlged  in   replfvln    630 

Hut  qiieKtions  of  set  off  may  be  InveHtlgated  In  certain  caspB 631 

IlluHtrationH  of  the  rule 632 

Set  off.  to  Hult  on  bond 6:13 


CONTENTS. 


CHAPTER   XIX. 

PARTIES. 

SECTION. 

Parties  who  may  be  plaintiff  and  defendant  634 

Owners  of  distinct  interests  cannot  be  joined.     Joint  owners  must 

be  joined    635 

Trustees,  executors  or  administrators  may  be  plaintiffs 636 

Suit  against  an  executor  ot  administrator  637 

A  parish  or  corporation  may  sustain  the  action  638 

AVhether  an  assignee  of  the  property  in  the  possession  of  another 

can  rue 639 

Sale  of  property  permitted,  notwithstanding   adverse   possession 

of  another   640-642 

A  father  may  sue  for  property  of  his  minor  child  643 

Servant  <  annot  sue  for  his  master's  goods 644 

Receiptor  of  an  officer  64ij 

Attaching  creditor  not  liable  jointly  with  the  officer  640 

Minor  cannot  sue   647 

Note  XXIX. — Plaintiff's  Trustee,  administrator,  bailee, 

depositary page  527 

Receivers "  528 

Mortgagee "  528 

Mortgagor "  528 

Pledgee "  528 

Bare  possession "  529 

Partners  and  tenants  in  common "  529 

Consignor  and  consignee "  529 

Husband  and  icife "  530 

Corporations "  530 

Guardian,  infant "  530 

Assignee "  530 

Joinder  of  plaintiffs "  531 

Equitable  title "  531 

Defendants,  one  in  actual  possession "  532 

Constructive  possession "  533 

Executors •'  533 

Attorney. "  534 

Assignee  for  creditors "  534 

Husband  and  irife "  534 

Officer  and  deputy "  534 

Infants "  534 

Wrongful  trnnsfcr  to  defeat  the  writ "  534 

Sheriff  out  of  office "  535 

Joinder  tf  defendants '*  535 

Mis-joinder "  535 


CONTENTS.  xxlx 

SlicHuX. 

Note  XXIX.— Continued. 

Ameiiduients  as  to  parties parje  535 

Jnterventiou ••  jjy 

Siibstitutio)!  of  partien •  5,1G 

Death  of  party,  or  transfer "  5J6' 


CHAPTER  XX. 

PLEADING. 

Pleading  648 

Established  rules  must  be  followed  619 

The  affidavit   650 

A  prerequisite  to  delivery    651 

Must  not  be  entitled  652 

Must  be  drawn  to  meet  the  evidence 653 

Takes  the  place  of  the  plaint 654 

By  whom  it  may  be  made.    General  requisites 655 

Meaning  of  the  term  oicncr 656 

Defects  in;  when  taken  advantage  of.  and  how  657 

The  truth  of  falsity  of  the  affidavit  not  in  issue 658 

Statement  of  value  of  the  property    659 

Statement  of  value  in  affidavit;  how  far  binding  660 

Must  state  that  the  property  was  not  taken  for  any  tax,  assessment 

or  fine  661 

Or  upon  any  execution  or  attachment,  etc 662 

Or  on  any  writ  of  replevin  against  the  plaintiff  (>63 

Strict  compliance  with  this  condition  required  664 

Note  XXX.—AjJidavit jta<ir       5.y: 

It  must  contain  a  correct  description  of  the  property.     Anicmlnients  665 

The  declaration.    Several  counts  joined  606 

Rights  of  parties  under  a  single  count 667 

T'ount  in  trover  for  goods  not  delivered   668 

Value  of  .such  goods  usually  given  In  damages 669 

Form  of  the  do<  laration;   wrongful  detention    670 

The  same.    .Must  l)e  drawn  to  meet  the  proofs 671,  672 

The  same.     Allegation  of  time  and  place   .673.  674 

Averment  of  wrongful   detention  essential    675 

Evidence  of  title  need  not  be  stated  <"'"•> 

The  same.     An  averment  of  a  right  of  posHeHSion  siiffit  lent  .  .  .  .677.  fiTS 

Where  the  complainant   follows  the  Htatute  ^'^ 

Dof-laratlon  should  state  value  of  the  goodu  <»*<0 

Ah  to  the  averment  of  demand   ^**l 

MuBt  claim  damages  *'8- 


XXX  CONTENTS. 

CHAPTER   XXI. 

PLKAD1.\(;     BY     UtKK.NDAXT. 

SECTION. 

General  rules;  each  defendant  niaj-  plead  separately (i'J3 

Separate  defenses   C84 

Plea  of  title;  must  show  title  when  the  suit  began 085 

Plea  to  title  or  right  of  possession  <'8G 

Plea  by  an  officer   087 

Plea  of  property  in  defendant   <"'88 

Property  in  a  third  person  089 

This  plea  does  not  amount  to  an  admission  of  taking 090,  ODl 

The  same.    Right  of  defendant  to  return  under  this  plea 092-095 

The  traverse   096,  697 

Replication    098 

Surrender  to  a  third  party  by  order  of  court  699 

Note  XXXI. — Pleadings.      Drchiratiini     or    (•(Diiplninf. 

(jenerallij /x'ye  .507 

Miist  aver  title,  and  how "  570 

Miifit  shoiiy  a  right  to  j)ossessioii "  .17^' 

^Iiist  shoiv  a  ivrongfid  detention "  o73 

Joinder  of  counts "  .'>,'.? 

Allegations  as  to  v(dne ...  "  573 

Damages "  573 

yeed  not  conform  to  I  he  affidavit "  573 

Prayer "  573 

Verification "  573 

Plea  or  ansirer  in  general "  573 

General  denial "  574 

Plea  in  abatement "  577 

Wliat  must  be  specially  plead  rd "  577 

Demand  of  return "  57S 

Joinder  of  defenses "  57,9 

Reply "  5:s 

Change  of  issues  by  agreement •*  57S 

Construction "  570 

Set-off  a7id  counterclaim "  5S1 

Amendments "  5S.'/. 

Supplemental  pleading "  5S<) 

Aider  by  pleading  over "  5SG 

Aider  by  verdict "  5S6 

Note  XXXII.— ^Jridence  preaumptions "  5S7 

Burden  of  jrroof "  5S7 


CONTENTS.  xxxi 


CHAPTER    XXII. 

PLEA   OF   NON    CEIMT   AND    NO.\   DETINET. 

SKCTIOX. 

Plea  of  non  cepit  or  7wn  detinet  700 

Admission  in  the  pleadings  not  evidence  as  to  the  matters  pre- 
viously put  in  issue  701 

Issues  admitted  cannot  be  denied  702 

Special  statutory  rules    703 

OfTice  and  effect  of  a  plea  of  non  cepit 704 

Form  of  plea  of  non  cepit 705 

Other  pleas  may  be  joined  with  70f» 

Plea  of  cepit  in  alio  loco 707 

Xon  detinet  is  like  non  cepit  70S 

Illustrations  of  the  use  of  this  plea  70y,  710 

Disclaimer  of  interest  in  property  no  defense 711 

Plea  of  justification;  the  burden  is  on  the  party  to  sustain  his  plea  712 

General  rules  governing  plea  of  noti  detinet  713 

If  the  defendant  claims  the  property  or  damages  he  must  file  a  plea 

so  stating 714 


CHAPTER    XXIII. 

REPLEVIN    OF    A    DISTRESS. 

The  right  of  distress 71  ."i 

Origin  of  the  right 716 

The  right  to  replevy  the  distress 717 

Right  of  distress  in  this  country  718 

Distress  not  a  suit  at  law   71H 

Replevin  of  a  distress  720 

Rights  of  the  landlord    721 

Sublessor's  liability    722 

Payment  to  landlord;  who  is  a  joint  tenant  72:i 

Rights  of  the  tenant 721 

The  avowry  and   cognizam  e    72r> 

Distinction  between  an  avowry  and  <-ognizance 72«; 

The  exa(  tnesB  required  in  these  pleas  727.  1"^ 

The  rent,  how  payable;  must  l)e  certain  729 

The  terms  of  the  lease 7.':<> 

The  usual  plea  to  replevin  of  a  dlPtreHS 7.'!  I 

Form  of  avowry  or  cognizance    7:{2 

Picas  to  an  avowry  or  cognizance   ".'{3 

Plea  of  Hct  off  to  an  avowry   73* 

Pleas  to  an  avowry;   avcrnwnfH  In    ...  "3r» 


xxxii  CONTENTS. 

SECTION. 

Plea  to  cognizance;  denying  authority  of  bailiff 736 

Plea  of  "  non  tenure  "  or  "  nothing  in  arrear  "   737 

Same  rules  apply  to  cognizance   738 

Effect  of  replevin  on  landlord's  lien   739 


CHAPTER    XXIV. 

Tin:    VKKDlCr    and    .UIXi.MK.NT. 

The  verdict  740 

Court  may  correct  form,  l)ut  cannot  change  the  substance 741,  742 

The  jury  must  pass  on  all  questions  at  issue 743 

May  find  for  both  parties  744 

Each  party  may  submit  necessary  issues  to  the  jury 745 

"  Not  guilty,"  what  responsive  to 746 

Statutory  except  ions    747 

In  justice  courts   748 

Illustrations  of  the  exactness  required  in  the  verdict 749,  750 

Finding  need  not  be  in  express  words  751,  752 

The  verdict  may  be  general  if  it  cover  all  the  issues   753,  754 

Verdict  should  not  amalgamate  different  issues 755 

Separate  defendants  may  have  separate  verdicts  756 

Verdict  must  be  certain    757,  758 

Must  be  consistent   759 

Value  of  property,  when  must  be  found  760 

Value  of  separate  articles 761 

Conditional  verdict  762 

Value  where  the  party's  interest  is  limited  763 

Verdict  for  damages,  when  essentia!  764,  765 

NoTF,  XXXIII. —  Verdict  in  general i>a(/e  63S 

Must  conform  to  the  issnes  and  find  all 

the  issues "  6,13 

C'erlaintij  required  in  the  verdict "  G34 

Constrnction "  63//. 

General  vc7\lict "  638 

As  to  the  prnpert;/  /»  the  goods "  639 

When  must  find  the  value "  639 

Vahie  of  the  separate  article "  640 

Damages "  641 

Description  of  the  goods "  64S 

When  objections  must  he  taken "  .  64S 

Amendment "  6Ji£ 

The  judgment    766 

Should  embrace  a'l  pa;  ties  and  all  issues 767,  768 


CONTENTS.  xxxiii 

SECTION. 

Must  be  certain    769 

Judgment  upon  default  77ft 

When  property  has  been  delivered,  plaintiff  cannot  have  value  ...  771 

Judgment  for  value,  or  delivery 772 

Judgment  in  the  alternative  for  the  goods,  or  their  value 773 

Exceptions  to  this  rule  774 

Judgment  for  both  parties  for  different  parts  of  the  goods  775 

Separate  judgment  as  to  separate  defendants 77fi 

Order  for  delivery  part  of  the  judgment 777 

Defendant  is  entitled  to  reasonable  time  to  comply  with  the  judg- 
ment for  return  77S 

Effect  of  payment  of  judgment  for  value 779,  7S0 

Judgment  of  non-suit  does  not  affect  title   781 

Judgment  of  dismissal    782 

Illustrations  of  the  effect  of  judgment  783 

Judgment  for  value  of  limited  interest 78,4 

Judgment  for  value  on  count  in  trover   785 

When  property  is  lost,  judgment  for  return  inimaterinl  7Sfi 

Judgment  for  value  in  such  cases 787 

Note  XXXIV. — Judymi'iif  in  tjriio-n! i«'</f  t'-'iJ 

Judgment  for  the  (jooils  fi>r  plaintiff.. . .  "  Git.l 

For  retur}i  ti>  dcfpnilinit "  054 

U7/e/'*?  the  court  is  iritiiout  jurisdiciiun.  "  057 

Rettirn  not  un-orded  nnhss  (Irnntniled. .  "  057 
Alternative  jndgnt»'}it  for  the  goods  or 

value "  OSS 

Judgment  of  onotlitr  stuff "  60-^ 

('on-ftrurtion  and  effect  of  the jndgntent.  "  GO.i 

Entri/  and  niitlioiticiition "  OOh 

Offer  of  cnniproniise '•  007 

Assignment  ofjuilgnient "  007 

Knforvenont  of  jndijnient "  007 

Etuli  iKirti/  jtnriiiliini  in  port "  007 

l'resiini[tt ion^ .  .  "  OOS 

Kunitotih-  rri:.  I'  .  "  00.\' 


CIIAi'THR     X.W. 

Misri.l  I.AVKOIH. 

Contesting  creditors  cannot   invdUf  tin-  aid   of  lln-   Insolvent   laws 

iiKalnst  each  other Ts*< 

Nor  h«fl  up  a  forfeiture  under  uBury  lawH   Tsi' 

Ri^ht  to  be^ln  and  conclude    790 

Trial  iij)on  the  fa<tH  cxlHtlnR  when  the  Hiilt  b  khii   .  7!M 


xxxiv  CONTENTS. 

SECTION. 

Note  XXXV. — Time  to  irhich  the  inquiry  is  directed. .  ..page  074 

Plaintiff's  case "  674 

Variance "  675 

Quesfians  for  tlie  court  or  jury "  675 

Instruct  ion.'i "  676 

Voinc "  G76 

Date  of  writ  not  conclusive  as  to  commencement  of  tlie  suit 792 

All  matters  in  dispute  should  be  settled  in  the  replvin  suit 793 

Defense  by  bailee   794 

Effect  of  a  submission  to  arbitration  795 

Plea  in  abatement,  another  suit  pending   796 

The  same.     The  affidavit   797 

Note  XXXVl.—Limifat ions poflfe        680 

Limitations    798 

Amendments   799 

Amendment  of  affidavit 800 

Death  of  party  to  suit  801 

Note  XXXyil.— Practice,  sum7)ions  and  return ixtgre        683 

Costs "  686 

Note  XXXVIII. — Justice  of  the  Peace,  jurisdiction page        687 

Judgment "  689 


TABLE  OF  CASES  CITED. 


REFERENCES  ARE  T<)   PAGES, 


Abbott  V.  Barry,  298. 

Aber  v.  Bratton,  80,  492. 

Abrams  v.  Jones.  274. 

Acker  v.  Campbell,  298.   304.   335, 

3:;6. 
Acker  v.  Finn.  349. 
Acker  v.  Wbite.  424.  426,  427,  621. 
Ackerman  v.  King.  398. 
Ackle}-  V.  Finch.  1^4. 
Ackworth  v.  Keini»c.  10.  246,  277. 
Acres  v.  BufTonl.  479.  .",91. 
Adams  V.  Adams.  6.  620. 
Adams  v.  Broughton.  648. 
Adams  v.  Champion.  64."). 
Adams  v.  Corriston,    102.  •V)4,    5.'j.j. 

r>m. 

Adams  v.  Davis.  22N.  229.  230. 

Adams  v.  Hubbard.  247,  281. 

Adams  v.  Mizcll,  293. 

Adams  v.  Smith,  312. 

Adams  v.  Tully.  2H.  .-,78. 

Adams  V.  WiMes.  170. 

Adams  V.  \Vo«mI.   204.  2 IT,,  232.  321, 

660. 
Adams  v,  Wriglit.  4M6.  492. 
Adamson  v.  Sundby.  79,  430,  6,^6. 
Addison  v.  Bmt,  266.  267. 
Addison  v.  Overeml,  M'.).  (H7. 
Adkiiison  v.  Hardwick,  7'). 
Adier  &  Sons  Co.  v.  Th«,rp,  29fl,  598. 
Advance  Co.  v.  Pit-rc^  Co.,  GT.*). 
AfTftld  V.  People.  40.'i. 
Ahlendorf  v.  Burkhous.  •'529. 

X 


Ahlman  v.  Meyer,  209.  4r)3. 

Aireton  v.  Davis,  499. 

Alabama  Stale  Bank  v.  Barnes.  124. 

Albertson  v.  Elk  Creek  Co.,  30. 

Alden  v.  Carver,  111. 

Alderman  v.  Manchester,  634. 

Alderman  v.  Roesel,  404. 

Aldrich  v.  Ketcham,  138. 

Aid  ridge  v.  Harper,  38r,.  394. 

Alexander  v.  Boyle.  344,  .'533. 

Alexander  v.  Bnrnliam.  273. 

Alexander  v.  Lydick,  403,  404. 

Alexander  v.  Rnndle.  2."). 

Alexander  v.  Sonthey,  13.'5.  346. 

Alferetz  v.  Ingalls,  190. 

Alford  V.  Bradeen,  146. 

Allaire  v.  Whitney,  458. 

Allamong  v.  Peeples,  676. 

Allen  V.  Agnew.  612. 

Allen  V.  Butman,  660,  663. 

Allen  V.  Cerney,  202,  203. 

Allen  V.  Crary.  43,  44,   47,  48.    i;r,. 

246,  270.  333. 
Allen  V.  Darby,  439.  441,  442,  444. 
Allen  V.  Dykers.  471. 
All.n  V.  Fox.  46.  375.  423.  43.",.  4.V). 

460.  464,  491.  494.  503. 
Allen  V.  Frederick,  6H8. 
Alien  V.  Ingram,  250: 
Allen  V.  .Indson.  3.59,  491. 
Allen  V.  Staples.  234,  212. 
AII.'M  V.  Steiger.  199.  .5.33.  6.56. 
AINmi  v.  Van  Ostrand.  125. 
Allen  and    Wife   v.  \Vhil<<,    Admr,, 

.521. 
XXV 


XXX  VI 


TAbLE  Ob'  UASE.S  CITEU. 


Allen  V.  Wright,  69. 

Allis  V.  McLe.iM.  484. 

Allison  V.  CMiaiHller,  400,  462. 

Allison  V.  Matlliieu,  298,  'M't. 

Allied  V.  Bray.  485. 

Alhvood  V.  Kucknuui,  148,  556. 

Alsayer  v.  Close.  475. 

Alteiiuis  V.  llolconil),  653. 

Auian  V.  Mottweiler.  84. 

Anient  v.  (Tieer,  209.  2!W,  577. 

Anierican  Hank   v.  Stronj^,  81,  206, 

083. 
American  Co.  v.  Bishop,  0015. 
American  Co.  v.  Fntiall.  197,  671. 
American  Co.  v.  Middletoii.  38. 
American  Co.  v.  AVillsie.  73.  299. 
Am.  Ex.  Co.  V.  Parsons,  474,  475. 
Amer  v.  Hi<,^hto\ver,  570. 
Ames  Iron  Works  v.  Ilea,  78,  583. 
Ames  V.  Miss.  Boom  Co.,  37,  39, 120, 

153,  100.  174.  179. 
Amory  v.  Flynn,  88. 
Amos  V.  Douglierty,  52. 
Amos  V.  Sinnott,  319,  560,  603,  605, 

007,  008.  009. 
Anchor  Co.  v.  Burns,  25,  315. 
Anderson  v.  Dimn,  564. 
Anderson  v.  Foster.  370. 
Anderson  v.  Gcmldherg,  .56. 
Anderson  v.  Hapler,  10.  95,  98,  542. 
ATiderson  v.  Heile,  121,  139. 
Anderson  v.  Lane,  103,  029. 
Anderson  v.  Nicholas,  25,  316,  474. 
Anderson  y.  O'Laugiilin,  441. 
Anderson  v.  Passman.  136. 
Anderson  v.  Reynohls.  020. 
Anderson  v.  Talcott,  439,  565,  567, 

003,  605. 
Anderson  v.  Tyson.  040. 
Anderson  v.  "Worley,  125. 
Andrew  v.  Dietricli,  298. 
Andrews  v.  Durant,  465. 
Andrews  v.  Powers,  30. 
Andrews  v.  Sliattuck,  338,  341. 
Angell  V.  Egger.  147,  187. 
Angell  V.  Keith.  43,  134. 
Angler  v.  Ash.  278. 
Anon.  2  Atk..  237.  19,  36. 
Anon.  1  Cli.,  501,  .531. 


Anon.  Dyer,  141  «.,  13. 

Anon.  Dyer.  188/>..  s.  14. 

Anon.  Dyer,  280  h  ,  :..  C.  424.  449. 

Anon.,  411111,  603.  681. 

Anon.,  4  How.  (N.  V.  Pr.)  290,  550. 

Anon.,  Loft.  520,  13. 

Anon.,  2  Mod.  199,  12. 

Anon.,  0  Mod.  103,  439. 

Anon.,  Popham,  38. 

Anon..  Wincli.  8,  26. 

Anstice   v.    Holmes.   4-37,   540,    504, 

557. 
Anthony  v.  Bartholomew,  82. 
Anthony  v.  Carp,  584. 
Api)elhy  v.  Holland,  50. 
Ai)|)lcton   V.  Barrett,   100,   340,  343, 

020. 
Api)lewhite  v.  Allen,  550,  081. 
.Xniher  v.  Hale,  079. 
Archer  v.  Long,  380. 
Archer  v.  Williams.  471. 
Archibald  v.  Tiiomas,  381. 
Arendale  v.  Morgan.  288,  311. 
Aria  Co.  v.  Burk,  124. 
Armel  v.  Layton.  000. 
Armitage  v.  Mac^e,  57,  121. 
Armogast  v.  Rising,  302. 
Armory  v.  Delamire,  113,  115. 
Armory  v.  Flyn,  232. 
Armour  v.  Arres,  540,  547. 
Armstrong  v.  Burrell,  351,  358,  390. 
Armstrong  v.  Percy,  482. 
Arnold  v.  Allen,  309,  385,  390. 
Arnold  v.  Hewitt,  189,  201. 
Arter  v.  Tiie  People,  etc..  368,  388. 
Arthur  v.  Sherman.  355,  357,  408. 
Arundel  v.  Trevill,  88. 
Arundel  v.  Treviii,  679. 
Arzaga  v.  Villalava,  480,  513. 
Ashell  V.  Tipton.  018. 
Ascher  v.  Sciiaeper.  598. 
Asli  V.  Putnam,  297,  303,  304,  310. 
Ashhy  V.  West,  603. 
Ashcroft  V.  Summons.  209,  322. 
Ashley  v.  Peterson.  400. 
Ashmun  v.  Williams,  90.  95. 
Aspbell  V.  Hoshein.  282.  322. 
Atciiison  V.  Graham.  198. 
Atchison  v.  Morgan.  27,  33. 


TABLE  OF  CASES  CITED. 


XXX  Vli 


Atherton  v.  Fowler.  T").  465. 
At  kin  V.  Barwick.  304. 
Atkins  V.  Gambol.  25. 
Atkins  V.  Moore.  :{9U.  411,  495. 
Atkins  V.  Owen,  332. 
Atkins  V.  Womel.ioif.  148. 
Atkinson  v.  Holconih,  555. 
Atlantic,  etc.,   R.  K.  v.  Cleino,  232. 
A  tor  V.  Rex,  655.  671. 
Augustine  v.  McDowell.  61. 
Aulil  V.  Kimberlin.  540.  546. 
AuM  V.  Travis.  121. 
Aulick  V.  Adams.  360. 
Aultman  v.  Reams,  452. 
Aultman  v.  Richardson.  4.50. 
Anitman  v.  Steiiian.  314.  3:J9,  431. 
Aultman   Co.   v.   McDonough,    5S2, 

<i39. 
Aultman   Co.    v.   ODow.l.    .'{5,    578, 

.585.  657. 
Aultman  Co.  v.  Sliciiler.  .574. 
Austen  v.  Howard.  :ii!l. 
Austin  V.  Craven.  Iso. 
Austin's  E.\rs.  v.  Jones,  501,  502. 
Austin  V.  Wauful,  82,  83.585. 
Austin  V.  Wilson,  511. 
Avery  v.  Perry  Co..  641. 
A  very  v.  Popper,  204.  205,  213,  316. 
A.vford  v.  Perrett.  370,  388. 
Ayer  v.  Bartlett,  498. 
Avers  v.  Heweft.308.  320. 
A/.el  V.  I>tz.  142. 


B. 


Buhl.  V.  Al<lrid;:»\  65H. 

B.ii.h  V.  Tal.-ott.  50.  51H. 

r.alxock  V.  cm.  17X.  ISO. 

HiilK'f>ck  V.  McCament,  667. 

Iial..o<k  V.  Trice.  51M. 

I'arlie  V.  I'loctor.  3>»7. 

Backenstohs  v.  Staliler.  463. 

Bacon  V.  Cropsey,  L'71. 

Ba«<.n  V.  Davis.  21,  HH. 

fiadger  v.    Phinney,  21,  22,  39,45, 

306.  .339.  606. 
Badliam  v.  Bnilinin.  5H|. 
Badlam    v.    Tucker,    235,    X,:i,    .TO. 


Baer  v.  Martin.  131. 

Bagnall  v.  Ableman,  271. 

Bailey  v.  Burton,  185. 

Bailey  v.  Ellis,  558. 

Bailey  v.  Shaw,  474. 

Bailey  v.  Swain.  575. 

Bailey  v.  Troxell.  554. 

Bain  v.  Clark,  617. 

Bain  v.  Trexler,  671. 

Baker  v.    Drake,  460,  462,  471,472, 

474,  483.  4N5. 
Baker  v.  Dulmis,  540.  543.  550. 
Baker  v.  Fales,  22,  88.  606. 
Baker  v.  Howell,  93,  98. 
Baker  v.  Mclnturff,  34,  593. 
Baker  v.  Philips,  17. 
Baker  v.  Sheehan,  254,281. 
Baker  v.  Washington,  et  al..  520. 
Baker  v.  Wheeler.  179,  479,  510. 
r.alch  V.  Jones.   142,  326. 
Baldwin  v.  Burrows.  574.  581. 
Baldwin  v.  Casli.  36,  136. 
Baldwin  v.  Cole.  320.  326. 
Baldwin  v.  Dewitt.  583. 
Bales  v.  Scott,  5.59.  645. 
Ballou  V.  OBrien,  295.  320. 
Balm  V.  Nunn,  284,  587,  578,  t)67. 
Balsley   v.   HolTman,  370.  372,  382. 

392.  518. 
Baltimore  Co.  v.  Hamilton.  2<»5. 
Baltimore    Ins.    Co.    v.    Dalrymple, 

468. 
Bancroft  v.  l'li//.;nd.  357. 
Banciofl-Wliit  in'v    Co.    v.   (Jowan, 

214. 
Bank  v.  BIye.  236,  23H. 
Baidc  V.  Dunn.  236. 
Bank  of  Louisvill<>  v.  Hill.  P.io. 
Bank  of  Rochester  v.  .iones.  67. 
Banks  v.  Whetstone.    160. 
Banning   v.    Marleau,   57S.  ,'.v.-,,  R;tl. 

6;t6,  «;57. 
liantoii  V.  Sliorcy.  32. 
BjulM-r  v.  The  hank.  247. 
Barbour  v.  While.  524.  643. 
Barchard  v.  Cone,  21 1. 
Bardwell  v.  StublM-rt.  51.  K«.  54H. 
Bark«r  v.  (Jreen.  499. 
Barker  v    .Miller.  562. 


XXXVIU 


TABLE  OF  CASES  CITFJ). 


Barker  v.  Stmn-.  18(5,  292. 
Harkluy  v.  Leiter,  50.  285. 
15arks(1alo    v.    Ai>i)lfbeiry,    21,    22. 

4.".(>.  502. 
Barnes  v.  Bartlett.  HI.  141,140,400. 

404.  470. 
Barnes  v.  Gardner.  81,  339,  532. 
Barnes  v.  Martin.  238. 
Barnes  v.  Tannehill,  119,  551,  558. 
Barnert  v.  Selling.  24,  88.  121,  131. 
Barnett  v.  Thompson.  470,  471. 
Barney  v.  Douglass,  493,  497. 
Barr  v.  Kennemore,  083. 
Barr  v.  Hughes.  018. 
Barrett  v.  Hall,  030. 
Barrett  v.  Harbarn,  585. 
Barrett  v.  Scrimshaw,  105. 
Barrett  v.  Turner,  105,  164,  107. 
Barrett  v.  Warren,  46,  49,  303,  300, 

327,  589.  000. 
Barron  v.  Cobleigh,  175,  196. 
Barrowcliffe  v.  Cumniins.  143. 
Barruel  v.  Irwin,  206,  547,  549,  654, 

059. 
Barry  v.  O'Brien,  105,  441,  454. 
Barry  v.  Rogers,  145,  358. 
Barry  v.  Sinclair,  303. 
Barse  Co.  v.  Adams,  122,  585. 
Earth  v.  Union  Bank,  670. 
Bartlett  v.  Brickett,  464,  522,  654. 
Bartlett  v.  Goodwin,  527,  577. 
Bartlett  v,  Kidder,  435,  446,  500. 
Bartleson  v.  Mason.  56. 
Barton  v.  :\rulvane,  78,  323. 
Barton  v.  SluiU.  359. 
Bassett  v.  Armstrong,  105. 
Basset  v.  Hareii,  575,  576,  578,  652. 
Bateman  v.  Blake,  483,  .503. 
Bateman  v.  Goodyear.  462. 
Bates  V.  Buchanan.  457,  466,  630. 
Bates  V.  Conkling.  320. 
Bates  V.  Nellis,  013.  014. 
P.ates  V.  Snyder.  000. 
Bates  V.  Stanley,  200,  207,  372,  377, 

057. 
Bates  V.  Stanton.  294. 
Bates  V.  Wiggin.189. 
Bates  County  Brink  v.  Owen,  230. 
Bat''s  V.  Witt  Mir.  1S5,  043. 


Batlis  V.  llaiuliii,  248,  278,  490,  498, 

499. 
Baum  Co.  v.  Union  Savings  Bank, 

033.  034. 
I5;iylessv.  Lefaivre,  59.  112,  115,  118, 

119,  232,  557. 
Bayless  v.  McFarland,  585. 
Baxter  v.  Berg,  058. 
Bead  I  v.  Botsford,  247,  286. 
Beach  v.  Derby,  1.57,  185. 
Beach  v.  Schmultz,  173. 
Beac^on  Falls  Co.  v.  Pratt,  300. 
Beagles  v.  Beagles,  72. 
Beals  V.  (Juernsey,  464. 
Bean  v.  Hubbard,  237,  250. 
Beard  v.  Duralde,  29. 
Beatty  v.  Clarkson,  147.  608. 
Beaumont  v.  Greathead,  458. 
Beazley  v.  Mitchell,  111.  2.58, 
Becker  v.  Bower,  191,  200. 
Becker  v.  Staab,  487.  503. 
Becker  v.  Vandercook,  321. 
Beckett  v.  Sheriff.  235. 
Beebe  v.  De  Baun,  43. 
Beech  v.  Fulton  Bank,  522. 
Beecher  v.  Derby  Bridge  Co.,  487. 
Beeniis  v.  AVylie,  024,  043,  644. 
Beer.s  v.  St.  Jolin,  90. 
Beers  v.  Wuerpul,  234,  245. 
Becker  v.  Dupree,  513. 
Beckwith  v.  Philleo,  100,112,043. 
Belcher  v.  Van  Duzen,  144. 
Belden  v.  Laing.  Ill,  244,  073,  079. 
Belkiii  V.  Hill.  37, 
Belknap  v.  Wendell,  073. 
Belknap  Baiik  v.  Robinson,  52,320, 

oro. 

Bell  V.  Bartlett,  22,  244,  452. 
Bell  V.  Bell,  408. 
Bell  V.  Cunningham,  400. 
Bell  V.  Ellis.  299.  302. 
Bell  V.  Farrar,  104. 
Bell  V.  Hogan,  145. 
Bell  V.  Monahan,  112. 
Bell  V.  OberCo.,  139,  517. 
Bell  V.  Pharr,  502. 
Bell  V.  Thomas,  303. 
Belt  V.  Worthington,  359,  381,  392. 
397. 


TABLE  OF  CASES  CITED. 


XXXIX 


Bemis  v.  De  Land.  60,  68,5:J1. 
Beemus  v.  Bt?ekiiiau.  4^7.  438,  437, 

G03.  623.  6.34.  62."».  fiiU. 
Benesch  v.  Wagner.  8*2,  .'»70. 
Benjamin  v.  Houston.  4U1,  528,  602. 
Benjamin  v.  Smith.  53,  35S. 
Benjamin  v.  Stremple,  490. 
Benje  v.  Creagh's  Admr.,  23,  42. 
Bennett  v.  Allen,  38,  369. 
Bennett  v.  Berry,  14. 
Efennett  v.  Ives,  135. 
Bennett  v.  Lockwood.  482,  480,  488, 

515.         , 
Bennett  v.  Tarn.  213.  214,  323. 
Bent  V.  Bent,  133. 
Bent  V.  Hoxie,  172,  214. 
Beigesch  v.  Keevil,  110.  550.  081. 
Berghoflf  v.  Heckwolf,  .370,  371,  434, 

437,  452. 
Bern  v.  Mattaire,  155. 
Beinai  V.  Hovious,  151. 
Bernardiston  v.  Chapman,  142. 
Berrien  v.  Wester velt,  540,  543. 
Berry  v.  Dwinel,  478. 
Berry  v.  Iloffner,  435. 
Berry  v.  Vantries,  463. 
Berthold  v.  Fox,  411,  400,  408,  502. 
Bertwhistle  v.  Goodrich,  322. 
Best  V.  Muir,  80. 

Best  V.  Stewart.  282,  2H3.  598,  601. 
Belhea  v.  McLennon,  44,  502. 
Betiilehem  Borougli  v.  Perseverance 

Fire  Co..  39. 
Bettinson  v.  Lovvery,  361,  416. 
Bettis  V.  Taylor,  .502. 
Bett.s  V.  Lee,  179.  180,  182. 
Beveridge  v.  Welcli,  497,  516. 
Beyer  v.  Fenstermacher,  619. 
Bickle  V.  Irvine,  576. 
Bieriiuller  v.  Schneider,  .55,  .521,  590, 

593. 
Bigelow  v.  Comegys,  3N6. 
Bigelow  v.  Doolittle,  461. 
fiilUiv.  HenderHon.2l7.22I,225,22«. 
BillH  v.  Kinnon,  23H.  213. 
BillH  V.  Vo<M>,  673. 
BilhipH  V.  Fro«niHri,  521. 
Binkley  v.  Dowall,  376.  377. 
Bin«t4«l  V,  Bn«-k.  332 


Bir(th:trd  v.  Bootli,  511. 

Bird  V.  Perkins,  282,  2,S3. 

Biscoe  V.  McElween,  510. 

Bissel  V.  Crake.  88,  162. 

Bissell  V.  Hopkins,  464. 

Bixel  V.  Bixel,  675. 

Black  V.  Hilliker,  378,  487,  641. 

Black  V.  Winterstein,  460. 

Biackhurn  v.  Crowder.  400. 

Blacket  v.  Cres.sop,  372. 

Blackie  v.  Cooney,  466. 

l^lackw.ll  V.  .\cton,  486,  488,  644. 

Blackwell  v.  Hunt.  10. 

Blake  v.  Blackley,  299. 

Blakeley  Co.  v.  Pease,  55. 

Blanclie  v.  Bradford,  618. 

Blaney  v.  Bearce,  103. 

Blatchford  v.  Boyden,  189,  535,  655. 

Bleiler  v.  Moore,  000. 

Bliss  V.  Badger,  50. 

Bliss  V.  Whitney.  92. 

Block  V.  Tinsley,  409. 

Blood  worth  v.  Stevens.  584. 

Bloody  V.  Keating.  2S9. 

Bloomer  v.  Juiiel,  620. 

Bloomingdalu    v.    Cliittenden,     68, 

368.  .546. 
Pilot  V.  Boiceau.  -171. 
Bloxam  v.  Hiil)hanl,  ;'.35. 
Bly  V.  United  Stales.  IHl. 
Blystone  v.  Burgett,  186,  292. 
Eioard  Conimi.ssioiiers  Ru.sli    Co.   v. 

Stubbs.  :!0. 
liobDya  v.  Prid.ly.  315,  .5-12. 
Bobo  v.  I'attoii.  403. 
Bodley  V.  Anderson.  189,  190. 
Botlley  V.  Kcynoi.ls,  4K2. 
Boeger  v.  LungenlM»rg,  205.  209. 
Boesker  v.  Pickett.  254,  .571. 
B<>e.s.><neck  v.  Bab.  355,  409. 
liolil  V.  KiiHs.  23. 
Iktgan  v.  Slout<'iii»erg,  330. 
liogar.l  V.  .b.nes.  17.  113.  114. 
Bogerl  V.  Burkhalter,  482. 
Bogerl  V.  Pliel|iM,  271. 
Ik>ggH  v.  Stiinki'V.  .58M 
lioieK  V.  With"  T.'li.  56.5. 
B<.iH«  V.  KiK.x.  112.  320. 
ri«j|untler  V.  (;entry.  Ill,  MtMl    .Vlil. 


xl 


TABLE  OF  CASES  CITED. 


Boley  V.  Griswold,  446.  644,  650,  659, 

668. 
Holiii  V.  Fines,  547. 
Bolles  Co.  V.  United  States,  179,479. 
Bolton  V.  Nitz,  -tOI. 
Bond  V.  (JritHii.  479. 
r.ond  V.  Mitcliell,  554.  555.  556. 
Bond  V.  Padelford,  115.  557. 
Bond  V.  Ward,  3'>0.  3]7. 
Bonesteel  v.   Orvis,    4G0,   462,   4G4, 

484.  494. 
Bonfil  V.  Russ.  23. 
Bonliain  V.  Hamilton.  214. 
Bonnen  v.  Zuehlke,  22S.  229. 
Bonner  v.  Coleman.  4;j7.  452,  457. 
Bonney  v.  Smith.  235. 
Bonnot  Co.  v.  Newman,  464,  671. 
Bonsall  V.  Condy,  257. 
Boody  V.  Keating.  289. 
Boom  V.  St.  Paul  Co.,  144,  371,  663. 
Boone  v.  Chiles,  589. 
Booth  V.  Ableman,  134,  261, 440,  450, 

465,  494,495.  496,  631. 
Bordeaux  v.  Hartman  Co.,  212. 
Borgfeldt  V.  Wood.  303. 
Borron  v.  Landes,  466. 
Bosley  v.  Farqnar,  274. 
Bosseker  v.  Cnimer,  624. 
Bostick  V.  Brittain,  142. 
Boston  &  W.  R.  R.  v.  Dana,  289. 
Boston  Co.  V.  Myers,  491. 
Boswell  V.  Green,  49. 
Boughton  V.  Bruce,  320,  838. 
Bougliton  V.  Omalm  Co..  407. 
Bourda  v.  Jones,  594.  667. 
Bouik  V.  Riggs,  436,  437,  438,  605, 

625. 
Bowen  V.  Fenner,  107,  334. 
Bowen  v.  Hutchings.  37.  135. 
Bowen  v.  Roach,  1.38,  148,  676. 
Bowen  v.  Roberts,  321. 
Bowen  v.  Schuler,  297.  305. 
Bower  v.  Higbee,  93,  94. 
Bower  v.  Tallman.  36,  87,  1.36,  137, 

275,  504,  507.  648. 
Bowersock  v.  Adams,  463,  483,  535. 
Bowmaker  v.  Moore,  394,  679. 
Bowman  v.  Eaton,  .338. 
Bowman  v.  Wi;iver.  653. 


Bown  V.  Wei)pner,  413.  578,  657. 
Bowser  v.  Scott,  613. 
Boyce  v.  C^annon,  69. 
Boyd  V.  HufTaker,  35(5. 
Boyd  V.  McAdams,  560. 
Boyden  v.  Frank.  2.S3,  532,  534,  664. 
Boyer  v.  Fowler.  ;W(),  408. 
Boy  Ian  v.  llugu.t.  330.  468. 
Boyle  V.  Roclie,  326.  601. 
Boynton  v.  Page.  149,  625. 
Brackeiihury  v.  Pell,  370. 
Brackenridge  v.  Ht)llar.d,  171. 
Brackett  v.  Bullard,  186. 
Brackett  v.  Griswold,  300. 
Bradley  Co.  v.  Fuller,  59,  299,  302, 

303.  ' 
Bradley  v.  Gemnielle,  25,  85.  86,  130, 

13(). 
Bradley  v.  Holloway,  246. 
Bradley  v.  Michael.  105.  Ill,  166. 
Bradley  v.  Reynolds.   375.   401.  4(»2, 

409,  411. 
Brad  fori!  v.  Frederick,  356. 
Bradsliaw  v.  Warner,  313. 
Brady  v.  Cook.  611. 
Bradyll  v.  Ball.  423,  424.  427. 
Brainard  v.  Jones.  412. 
Brancli  v.  Branch.  363,  365,  369.421, 

434,  521 ,  542. 

Brancli  v.  Wiseman,  106,   151.  280, 

435.  437.  576.  657. 
Brannin  v.  Bremen,  267.  635. 
Brannin  v.  Johnson,  462.  484,  517. 
Branscombe  v.  Scarbrough,  382. 
Bratton  v.  Clawson.  101. 

Bray  v.  Raymond,  142.  529. 
Brearley  v.  Cox,  90.  92. 
Breintenwisher  v.  Clough.  323. 
Brennan  v.  Shinkle,  463,  486. 
Brenot  v.  Robinson.  641. 
Brent  v.  Hagner,  89. 
Brewer  v.  Fleming,  76,  98. 
Brewer  v.  Strong's  Exrs..  522. 
Brewster  v.  Bakei'.  133. 
Brewster  v.  Schoenhofen  Co.,  189. 
Brewster  v.  Van  Liew.  474. 
Brice  v.  Elliot.  219. 
Brichman  v.  Ross.  281.  656. 
Bridge  v.  Eggleston.  595. 


TABLE  OF  CASKS  ClTKi). 


xli 


Bridges  v.  Hawkeswoilli.  115. 

Bridges  v.  Layman.  '-2^0,  54L  54."). 

Bridges  v.  Thomas.  il'J. 

Biiggs  V.  Dorr.  G',M. 

Briggs  V.  Gleasou.  42.  449. 

Briggs  V.  Large,  GIT. 

Bright  V.  Miller,  139,  315,  07(5. 

Bringliurst  v.  Pollard.  217,  2,'0.  321. 

Bristol  V.  Burt,  173,  320. 

Bristol  V.  Willsinore,   298,  304.  31L 

Briti.sh  Co.  v.  Cody.  201. 

Britt  V.  Aylett.  HI. 

Brizsee  v.  Mayl)ee,460,  463,  465,  478. 

4S5.  510.  515. 
Broadwater  v.  Dame,  35.  113,  451. 
Broadwjiv  v.  Biiriiap.  43.  44.  45,  47. 

85,  130,  137.  .556.  557. 
Broadwell  v.  Howard,  63. 
Broadwell  v.  Paradice.  281, 492,  662, 
Brock  V.  Barr.  204.  206,  284. 
Broekway  v.  Kinney.  626. 
Brod}'  V.  CiiittendeM,  670. 
Bronson  &  Mitciiell.  545. 
Bronson  v.  Russell.  213. 
Brook  V.  Bayle.ss,  202,  483. 
Brooke  v.  Berry.  22.  36. 
Brookover  v.  F]slerly,  184. 
Brooks  V.  Libby.  453, 
Broom  v.  Fox,  434. 
Brown  v.  Allen,  512. 
Brown  v.  Beason,  324.  529. 
Brown  v.  Beck  with.  255. 
Brown  v.  Bement.  184.  185. 
P.rown  V.  Bissett.  246.  568.  616. 
Brown  v.  Caldwell.  89.  93.  101. 
Hrown  v.  ("anipsall.  201. 
Brown  v.  Cliickai)ec  Falls  Co.,  111. 
Brown  v.  (,'onipton,  270. 
Brown  V.  Cook,  320. 
Brown  v.  Crockett,  128. 
Brown  v.  CummingH,  482. 
Brown  v.  Davis,  278. 
Brown  v.  Dempsey,  122,  123. 
Brown  v.  Emerwjn,  5.^9. 
Hrown  v.  Hogan,  202.  651. 
Brown  v.  Holmes.  1.58.325,  837,553, 

.55f,. 
Brown  V.  Horning.  684. 
Brown  v.  Jar v in,  276. 


Bntwn  V.  Johnson.  446.  503.  650. 

lirow  II  V.  Loesch.  237. 

Brown  v.  Morris.  459. 

Brown  v.  Parker,  309,  370.  371.  3S2. 

Brown  v.  Pollani.  23. 

Brown  V.  Sax.  153.  178.  ISO,  is,'. 

Brown   v.   Smith.  36,   119,  188.  is;). 

450,  451,  484,  540,  624,  627.  (UT. 
Brown  v.  Stanford,  437.  443. 
Brown  v.  Wallis,  88,  92. 
Brown  v.  Webster.  439.  566. 
Browne  v.  Powell.  613. 
Brownell  v.  Carnley,  118. 
Brownell  v.  ^lanchester,  3(5.  1 15.  235. 

525.  557; 
Brownell  v.  Twyman.  122.  ."tS'.t.  5'.i'.i. 
Browning  v.  Bancroft.  298. 
Browning  v.  Hanford.  128.  275,  278. 
Bruce  v.  Horn,  82. 
Bruce  V.  Learned.  402.  51 1. 
Bruce  v.  Squires.  6().  07.  281. 
Bruce  v.  Ulery,  431. 
Bruce  V.  Westervelt.  "0,  108. 
Bruen  v.  Ogdeii.  35.  4(i.  205. 
Brundage  v.  Camp.  309.  311. 
Brunell  v.  Cook.  492; 
Bruner  v.  Dyball.  32r..  422.  4. '4.  621. 
Brunk  v.  Champ,  6.50.  6M0. 
Brush  V.  Fowler,  250. 
Brusley  v.  Hamilton.  109. 
Bryan  v.  Smith.  HI. 
Bry.-in  v.  Stout.  211. 
Bryant  v.  Ware.  171.  1 :2,  529. 
Mublitz  V.  Tn.mbl.'v,  308. 
Hiichanan  y.  Buchanan.  20. 
Bucheiieau  v.  Homey.  308. 
Buck  V.  CnllKith.  210.   21S.  259.  2:'^. 

::37. 
Ihi.-k  V.  Collins.  117. 
Buck  V.  Lewis.  388.  393. 
Buck  V.  Reni.scMi,  499. 
Buck    V.   Young.    193.  202,  201.  205. 

2W.  570.  .577.  612. 
Buckhalter  v.  Nu/.um.59. 
Bu.kley  v.  Buckl.'V,  21.  35.  Ks.  |:{2. 

1.55.  173.  2:: I.  122.  4  13.  450.  4.52.6;!2. 
Ihickmaslcr  v    M"Iiiih»h.  392. 
I'.iiell  V.  Bull.  2IH,  220.  227.  22^.  229. 
P.u-ll  V.  S.hnal.'.  219. 


Kill 


TABLK  OF  CASES  CiTKD. 


fUiffington  V.  Gerrisli.  ^05,  335. 
Bugle  V.  l\Iyers,  3ol. 
Hull  V.  Griswold,  95.  181,  509. 
liullis  V.  Montgouiery,  249. 
Durbauk  v.  Crooker,  313. 
Huichettv.  Ilamil,  29,  72. 
lUiiclick  V.  Ciieseboro.  11.^,  580. 
liunlett  V.  Hunt,  1.59. 
Hunlick  v.  McVanner,  44,  185. 
Billfold  V.  First  National  Bank,  197, 

198. 
Burgwalil  V.  Donelsoii.  322,  570,684. 
Buihanis  v.  Tibbits.  623. 
Burkle  v.  Levy.  300. 
Biukle  V.  Luce,  73,  273,  381,  398,  423, 

424.  621.  682. 
Burket  v.  Boude.  611. 
Burket  V.  Plieister.  373.  594. 
BuiiH'tt  V.  Gu.stafsoii,  193. 
Bums  V.  Campbell,    187,    207,    208. 

536.  577. 
Burns  v.  Coojier,  148. 
Burns  v.  Robbins,  273. 
Burr  V.  Brantley,  1.57. 
Burr  V.  Dougherty,   35,  36.43,133 

1.54,  320. 
Burrage  v.  .Melsoii,  482,  513,  .553. 
Burrall  v.  Vanderbilt,  384. 
Burrows  v.  Stoddard,  128. 
Burrows  v.  Waddeli,  283. 
Burseley  v.  Hamilton,  76. 
Burt  V.  Burt,  57,  81. 
Burt  V.  Dutcher,  470. 
Burton  v.  Brasliear,  130,  136. 
Burton  v.  Cochran.  204. 
Burton  V.  Curyea,  157,296,309,  311. 
Burton  V.  Hough,  107. 
Burton  v.  Tanneliill,  106. 
Burton  v.  Wilkinson,  273. 
Busch  V.  Fischer,  120,  172,  401,  406. 
Bu.scli  V.  Moline  Co.,  361. 
Buching  v.  Sunman,  640. 
Bu.sli  V.  Groomes,  23.  343,  .530. 
Bu.sh  V.  Lyon,  112,  118. 
Busick  V.  Butnm,  540. 
Bussey  v.  Page,  101. 
Bussing  V.  Rice,  320.  335,  336. 
Buster  v.  Nfwkirk.  88. 
But<-lier  V.  (ircc-ne,  451. 


Butcher  v.  Porter,  372,  439,  440,605. 

Butler  V.  Collins,  303,  485. 

Butler  V.  Howell,  .597. 

Butler  V.  Jones,  344. 

Butler  V.  Mehrling,  485. 

Butler  V.  Milh-r,  184. 

Butler  V.  Pa^-e.  31. 

Butli-r  V.  Wigge,  387. 

Butts  V.  Woo.l.  237. 

Butterficld  V.  Ilenisley,  368. 

Butt.Ms   V.    llaugliwout,    309,    311; 

340. 
Butts  V.  Collins,  128. 
Byrd  v.  O'llanlin,  37. 
Byei>  V.  I\racauley,  269. 
Byers  v.  McClanalian,  366. 
Byrne  v.  Byrne.  243. 
Byrne  v.  Lynn.  573,  641. 
Byrnes  v.  Palmer.  26,  486. 

C. 

Cabell  V.  Bo>;,l,4!5. 

Cable  V.  I);ikin.510. 

Cady  V.  Eggleston,  351,  388. 

Cad  well  V.  Pray,  171,  196. 

Caghill  V.  W,,(,idridge.  528. 

CahilTs  Appeal.  306. 

Gaboon  v.  Bank  of  Utica,  647. 

Cain  V.  Cain,  521. 

Cain  V.  Cody,  156,  486,  .584,  638. 

Caldwell  V.    Arnold,  246,    261,  374, 

270. 
Calnaii  v.  Stern,  82,  376. 
Caldwell  V.  Bartlett,  298,  311. 
Caldwell  v.   Bruggerman,   631,  646. 
Caldwell  V.  Cleadon,  617. 
Caldwell  V.  Cowan,  107. 
Caldwell  v.  Fenwick.  132,  1.53,  501, 

.502. 
Caldwell  v.  Gans,  236,  381,  398,  407, 

422. 
Caldwell  V.  Pray,  .320.  321. 
Cal.lwell  V.  Ryan.  2.56.  5S4,  6.59,664. 
Caldwell  v.  West,  40.  .348,  .398,  411, 

464.  544. 
California  Association  v.    Stelliog, 

315,  317.  322,  324. 
Cameron  v.  Wentworth,  572. 
Camp  V.  Root,  679. 


TABLE  OF  CASES  llTED. 


xliii 


Campbell  v.  Camp,  574. 
Campbell  v.  Head,  221,  545,  550. 
Campbell  v.  Jones.  509,  629. 
Campbell  v.  Quiuhin.  604. 
Campbell  v.  Qiiinton,  A2'i,  657,  671. 
Campbell  v.  lioeder.  189. 
Campl)ell  Co.  v.  Walker,  213,  317. 
Campbell  v.  Williams.  106,  111,  241. 
Campbell  v.  Woodworth,  485. 
Caiiadi:in  Bank  v.  McCrea,  65.  316. 
Cannon  v.  Folsom,  472. 
Cannon  v.  Kinney,  112. 
Cantiill  V.  Babcock,  268,  413. 
Capon  V.  Bartlett,  403. 
Capital  Co.  v.  Hall,  654.  655. 
Capital  Co.  v.  Lained,  375,  376,  398, 

401.  402. 
Cardinal  v.  Smith.  224. 
Cardwell  v.  Gilmore.  553,  6.53. 
Carey  v.  Bright,  27,  127,  330,  511. 
Carew  v.  Matliews,  2()9. 
Carl  V.  McGonigal,  323. 
Carleton  v.  Love  joy.  67. 
Carlin  v.  Ritter,  31.  32. 
Carlisle  Co.  v.  Bailey,  ,366. 
Carlisle  v.  Burley.  521. 
Carlisle  v.  Weston,  44. 
Carlun  v.  Dixon.  402,  405.  412,  413. 

.547,  GS4. 
CarLson  v.  Small.  547.  570. 
Carlton  v.  Davis.  1.53.  643. 
Carman  v.  Ros.s,  82. 
Carney  v.  Cleissner,  535. 
<  arothers  v.  Van  1  lagan.  629,  647. 
( 'arjicnter  v.  Glass,  61. 
(.'arf>euter  v.  Hale,  524. 
CarjHjnter  v.  Ingram,  .581. 
Carpenter  v.  Innis.  237. 
Carpenter  v.  M:inhattan  Co..  .5N3. 
C.-irpcnter  v.  Shave.  MO. 
CarjM'nter  v.  Stf-vi-nx,  ;;i»5.  4  16,  .501. 
CarfK^r  v.  Uisdon,  :>U\. 
Carr  v.  Ellis.  .T.i:!.  671. 
Carraway  v.  Wiiilac.-.  IIM).  430.  187 

.527.  592.  .593,  087. 
Carrier  v.  (Carrier,  .578.  63;'.,  f.:!l   (V'll 
Carrel  v.  Early,  501,  502. 
Carrico  v.  Taylor,  374. 
Carrol!  v.  rrank.  59'^ 


Carroll   v.  Harris,  C05. 

Carroll  v.  Pathkiller,  47,  491. 

Carroll  v.  Spiague,  5S6. 

Carruth  v.  Grassie,  ICO. 

Carson  v.  Applegarth,  377.  628,  630. 

Carstens  v.  Earles,  675. 

Carswell  v.  Ware,  167. 

Carter  v.  Stevens,  GS5. 

Carter  v.  Streator.  475. 

Carter  v.   Wiilard,   168. 

Cartland  v.  Morrison.  524. 

Cartwright  v.  Smith.  190,  547. 

Carty  v.  Fenstemaker,  185. 

Caruthers  v.  Hensley,  668. 

Carver  v.  Carver.  405,  408. 

Gary  v.  Daniels,  686. 

Gary  v.  Hewift.  43.  422,  673. 

Gary  v.  Hotailing,  297,  303. 

Case  V.  Alien.  201. 

Case  V.  Pettee.  369. 

Casey  v.  Rlalidore,  156. 

Cash  V.  Quenichett,  367. 

Casper  v.  Kent  Clr.  Judge.  208.  684. 

Cass  V.  Gunnison,  187,  317. 

Cass  V.  Higinbotham,  70. 

Cass   V.   N.   Y.   &   N.   H.   R.   R..   295. 

344,  522,  524.  530. 
Cassell    V.    Western,    etc..    Co..    105. 

554,  673. 
Gassiday  v.  Ellas,  5,  .^-3. 
Gate  V.  Gate.  243. 
Gathey  v.  Bowen,  6.'")9. 
Gatterlin    v.   Mitchel!.    .' i'>. 
Gavener  v.  Shinklo,  '2il.  .'77. 
Central    Bank    v.    Breckclson,    IL'I. 

193,  205.  402,  405. 
Central  Bank  v.  Georgia  Co..  536, 
Central  Go.  v.  Mears.  76.  120. 
Ghadwi<k  v.  Badger.  369. 
Chadwick   v.  .Miller.  ."6.  37.  441. 
Gliaffoe  V.  Harrington,   140. 
GhafTee  v.  SanKston,  370. 
GhaniherH    v.    Hunt.    142.    144.    1  !.'>. 

146.  149,  520.  500.  564.  566.  508. 
Chambers  v.  IVrry.  251,  C39. 
ChamherH  v.  Waters,  3S2.  437. 
('Iiarnpldii   v.   Vlruont.  4.58,   402. 


xliv 


TABLE  OF  CASES  CITED. 


Chandler  v.  Allison,  486.  516. 
Chandler  v.  Colcord,  198,  322. 
Chandler  v.  Edson,  179. 
Chandler  v.   Lincoln,  150,  438,  567, 

568.  605,  GOo,  607. 
Chapin  v.  Jenkins,  323. 
Chapin   v.   Marson,  401. 
Chapman  v.  Andrews,  42. 
Chapman  v.  Kerr,  468,  593. 
Chapman  v.  Kirby,  483. 
Charleston  v.  Price,  37. 
Charlotte  Co.  v.  Stouffer,  28. 
*  Chase  v.  Allen.  562. 
Chase  County   Bank   v.   Thompson, 

m,  573. 
Chattanooga  Co.  v.  Evans,  414. 
Chatten  v.  Snider,  2,^5. 
Chatteiton  v.  Saul.  SS.  89. 
Cheatham  v.  Morrison,  383. 
Cheney  v.  Eastern  Line  Co.,  60,  144. 
Chenyworth  v.  Daily,  337. 
Chesney  v.  Francisco,  251,  253,  254. 
Chicago   &   Alton    R.   R.    v.    Dalby, 

522. 
Chicago  Dock  Co.  v.  Foster,  316. 
Chicago  Co.  V.  Goodwin,  27. 
Chicago  Co.  v.  Lowell,   70. 
Chicago  &  N.  W.  Ry.  Co.  v.  Peacock, 

522. 
Chicago  &  S.  \V.  Ry.  Co.  v.  N.  W. 

Packet  Co.,  558. 
Chicago  Co.  v.  Reed,  73. 
Chickering  v.  Raymond,  88. 
Childs    V.    Childs,   40,    43,    107,   440, 

494,  624. 
Childs  V.  Hart,  552,  555,  556. 
Childs  V.  Wilkinson,  376,  377. 
Chiles  V.  Drake,  512. 
Chilson  V.  Jennison,  267. 
Chinn  v.  McCoy,  392. 
Chinn  v.  Russell.  22,  23,  40,  44,  45, 

106,  237,  246,  247,  337. 
Chissom  v.  Hawkins,  132,  148,  154. 
Chissom  v.  Lamcool,  645. 
Choen  v.  Porter,  453,  534. 
Christiansen  v.  Mendham,  402,  404, 

408. 


Christy  v.  Ashlock,  532. 
Church  V.  De  Wolf,  647. 
Church    V.   Foley,   527. 
Churchill  v.  Rea,  549. 
Cincinnati  Co.  v.  McDougall,  594. 
Cinfel   V.   Malena,   M,'?.  535. 
Circnrester,     The     Abbott     of,      v. 

Thomas,  15. 
Citizens'  Bank  v.  Larabee.  635,  (!37. 
Citizens*  Bank  v.  :\Iorse,  371,  406. 
Citizens'  Pank  v.  Smith,  188. 
City  of  Bath   v.   Miller,   43 L   43,"^. 
City  of  Chicago  v.  Mirtin,  460. 
City  of  Ft.  Dodge  v.  Moore,  159. 
Claflin  V.  Thayer,  365. 
Claggett    V.   Richards,   363. 
Clap  V.  Guild,  352,  325,  48L 
Clapham  v.  Crabtree,  71,  C60. 
Clapp  V.  Shepard,  88.  523. 
Clapp  V.  Walters,  491. 
Clark  V.  Adair,  441. 
Clark  V.  Bales,  647. 
Clark  V.  Clinton,  239,  364,  689. 
Clark  V.  Conn.  Riv.  R.  R.,  3G9. 
Clark   V.    Dreyer,   402. 
Clark  V.  Dunlap,  266,  429,  549,  684. 
Clark  V  Griffith,  LjO.  166. 
Clark  V.  Heck.  106,  627. 
Clark  V.  Howell.  416. 
Clark  V.  Keith,  12,  450.  451,  627,  647. 
Clark  V.  Lewis.  23L  320. 
Clark  V.  Norton,  127,  247,  369,  374. 

382,    434. 
Clark   V.    Pinney,   493. 
Clark   V.   Reyburn,  102. 
Clark  V.  Sicinner,  23,  33,  42,  43,  111, 

237,  525. 
Clark  V.  Warner,  648. 
Clark  V.  West,  111,  245,  673. 
Clarke  v.  Bell,  368. 
Clarke  v.  Shee,  161. 
Clary  v.  Rolland,  380.  382,  406,  644. 
Claton  V.  Ganey,  677. 
Clay  V.  Caperton,  286. 
Cleaves  v.  Herbert,  107,  184.  554. 
Clement  v.  Duffy,  469. 
Clement  v.  Wright,  97. 


TAHLE  OF  CASES  CITED. 


xlv 


Clements  v.  Flight,  136. 

Clements  v.  Glass,  491. 

Clemmons  v.  Brinn,  78,  159,  317. 

Clemmons  v.  Gordon,  407,  585. 

Clendenning  v.  Guise,  546,  549. 

Clinton  v.  King.  273. 

Clinton  v.   Stovall,  662. 

Clopton  V.  Goodbar,  656. 

Cloud  V.  Moorman,  165. 

Clouston  V.  Gray,  637,  660. 

Clow   V.   Gilbert.   454,   689. 

Clow   V.   Yount.   316,   463,   494. 

Coan  V.  Bowles,  12,  616. 

Cobb  V.  Curts,  3C3. 

Cobb  V.  Dows,  310. 

Cobb  V.  Megrath.  106,  111.  112. 

Coburn  v.  Harvey.  612. 

Cochran  v.  Flint.  27. 

Cochran  v.  Winburn,  504. 

Cocks  V.  Nash.  393. 

Coddington  v.  Bay,  311. 

Coe  V.   Peacock,  498. 

Coffin  V.  Field,  44 

Coffin  V.  Gephart,  80,  131. 

Coffin  V.   Knott,   43. 

CoRliill  V.  Boring,  298.  301.  308.  524, 

530,  675. 
Coghill   V.    Hartford,   313. 
Cohen  v.  Adams,  65,  357. 
Cohen  v.  Porter,  82,  84. 
Coie  V.  Carl,  229,  322. 
Coit  V.  Waples,  437,  553,  555,  556, 

605.  623. 
Colby  V.  O'Donnell,  268.  656. 
Colby  V.  Portman.  66.  532. 
Colborn   v.   Barton,  549. 
Cole   V.   Conolly,   22,   277,   496,   569. 
Cole  V.  Tucker,  510. 
Coles   V.   Hulme,   387. 
Colean  Co.  v.  Strong,  204,  492.  503. 
Colgrave  v.  Dias  Santos,  342. 
Collins  V.   Publishing  Co.,  574. 
Colman   v.   Wade,   ."585,  394. 
Coliamer  v.  Pag«r.  I'.H.   \H,  145.  455. 

643. 
Collins  V.  Kvans,  108,  412. 


Collins    V.    Hough,    376.    382,    431. 

452. 
Collman  v.  Collins.  296. 
Collomb  V.  Taylor,  47. 
Colorado  Springs  v.  Hopkins.  357. 

406.  408. 
Colorado  Bank  v.  Lester,  361,  404. 
Colt  V.  Eves,  271.  276. 
Colton    V.    Mott,    145. 
Colweil  V.  Brower.  175. 
Colwill  V.  Reeve.  170. 
Combs  V.  Bays.  24.  580. 
Commercial  Bank  v.  Ketchum.  .">47, 

549. 
Commercial     Exchange     Bank     v. 

Blye.  357. 
Commercial  Co.  v.  Campbell.  215 
Commercial      Bank.      Buffalo,      v. 

Kortright,  471,  516. 
Commonwealth  v.  Kennard,  250. 
Commonwealth   v.  Morse,  527. 
Commonwealth  v.  Rees,  350. 
Comparet  v.  Burr,  25. 
Conely   v.    Dudley,  56. 
Congregational    Society    v.    Flem- 
ing. 92. 
Conklin  v.  McCauley.  254.  256.  «33. 
Connah  v.   Hale.  320.  344. 
Conner  v.  Comstock.  320.  ?.:'.:,.  437, 

443. 
Conley  v.  Deere,  237. 
Conner    v.    Henderson.    309. 
Conner  v.  Hillier.  468. 
Conner  v.  Palmer,  241. 
Connor  v.   Knott.   575. 
Consolidated     Tank     Line     Co.     v. 

Hronson.   51,   209,   666.   668. 
Conrad  v.  Pacific  Ins.  Co.,  462. 
Constantine    v.    Foster,    439.    065, 

567. 
Conyers  v     KiiiiiH.  307. 
Cook  V.  Kills.  511. 
I   Cook  V.  Gross.  iUl,  216. 
1  Cook  v.  Haniillon,  53,  358. 
Cook    V.    Howard,    113. 
Cook  V.  Looniis.  514. 
Cook   v     Lothrop.  374.   377.   381. 


xlvi 


TABLE  OF  CASES  CITED. 


Cook  V.   Phillips,   63. 

Cook  V.  Staats,  541. 

Cooke    V.    Aguirre,    158,    603,    653, 

658.   663,   684. 
Cool  V.   Phillips.  73. 
Cool  V.  Roche,  576. 
Cooley  V.  Davis,  22,  234. 
Coombs  V.  Gordon,  247.  609. 
Coomer  v.  Gale  Co.,   83. 
Combe  v.  Sanson,  670. 
Cooper  V.  Bakeman,  580,  587. 
Cooper  V.  Brown,  374,  406,  437. 
Cooper  V.  Newman,  335. 
Cooper  V.  McKee,  199.  578. 
Cooper   V.   Peck,   374. 
Cooper  V.  Watson,  75. 
Coos  Bay  Co.  v.  Siglin,  599,  661. 
Cope  V.  Romeyne,  101. 
Copeland  v.  Bosquet,  313. 
Copeland  v.  Majors,  645. 
Coply  V.  Rose,  47. 
Copp  V.  Williams,  254. 
Corbel]  v.  Childers.  267,  638. 
Corbett  v.  Littlefield.  190. 
Corbett  v.  Lewis,  149,  520. 
Corbitt  V.  Heisey,  39,  109,  563,  567. 
Cornett  v.  Pond,  51.  656. 
Corcoran  v.  White.  144,  529. 
Core's  Case,   Dyer.   160. 
Corley  v.  Rountree.  402. 
Cornell  v.  Cook.  278. 
Cortelyou  v.  Lansing,  470. 
Corey   v.   Silcox,   458. 
Cornett   v.   Hall.   143. 
Cothran  v.  Knight,  599. 
Cottrell  V.  Carter,  82.  213.  322. 
Coryton  v.  Lithebye.  145. 
Cotter  V.  Doty,  243. 
Cotton  V.  Marsh.  277. 
Cotton  V.  Watkins,  184.  186. 
Council  V.  Averett,  384.  401. 
County    of   Christian    v.    Overholt. 

485. 
Courtis  V.  Cane.  288,  290,  320,  325, 

334.  335. 
Couse  V.  Tregent,  213,  315. 
Covell  V.  Heyman.  269. 


Coverdale  v.  Alexander.  403. 

Coverlee  v.  Warner,  47. 

Covin  V.  Hill.  292.  309.  310. 

Cowart  V.   Cowart.  29. 

Cowden    v.    Lockridge,    204,    687. 

Cowden    v.    Pease,    378. 

Cowdin  V.  Stanton,  374,  378. 

Cowen  V.  Bloomberg,  300,  301,  595. 

Cowling  V.  Greenleaf.  657,  665. 

Cox  V.  Albert,  70,  323.  677. 

Cox  V.  Chester,  125. 

Cox  V.  Fay,  56. 

Cox  V.  Grace.  540,  541,  543,  551. 

Cox  V.  Hardin,  108. 

Cox  V.  Morrow,  45,  49. 

Cox  V.  Sargent,  402. 

Craft  V.  Franks,  420.  421. 

Craig  V.  Fowler.  54,  78. 

Crans  v.  Cunningham,  253. 

Cranz  v.  Kroger,  340. 

Cravath  v.   Plympton,   521. 

Crawford  v.  Morris,  647. 

Creamer  v.  Ford.  38,  350.  391. 

Creel  v.  Kirkham,  30. 

Creelman  Co.  v.  Lesh.  190. 

Creighton    v.    Haythorn,    483,    640, 

COO. 
Creighton   v.   Newton,   450. 
Crenshaw  v.  Moore,  112. 
Cresson    v.    Stout,    88.    92,    93,    98. 

113. 
Crews  v.  Harlan,  213,  216. 
Crist  V.  Parks,  542,  682. 
Crites  v.  Littleton,  389. 
Crittenden  v.  Lingle,  247. 
Crocker  v.   Mann,  43,  105,  612. 
Crockett  v.  Grain,  151. 
Crofoot  V.  Bennett,  164. 
Croker  v.  Burns,  199,  203,  570,  571. 
Cromer  v.  Watson,  677,  688,  689. 
Cromwell  v.  Owings.  235. 
Cronk  v.  Reid.  638,  652. 
Cronly  v.  Brown,  558. 
Crosby   v.   Baker.   249. 
Crosby  v.   Leng,   289. 
Crosse  v.  Bilson,  444,  450,  454,  56i. 

565,  616. 


TABLE  OF  CASES  CITED. 


Xlvil 


Crossley  v.  Hojcr,  463.  464,  491. 
Crum  V.  Elliston,  S4,  156,  546,  549. 
Cruts  V.  Wray,  660. 
Cullum  V.  Bevans,  22,  40,  42,  149, 

563. 
Cully  V.  Spearman,  615. 
Culver  V.  Randle,  77.  417.  600. 
Cumbey  v.  Lovett,  57-0,  576. 
Cumberland    Coal    &    Iron    Co.    v. 

Tilghman,  22. 
Cummings  v.  Gann,   116,  332,  351, 

365. 
Cummings  v.  Holmes,  210. 
Cummings  v.  Mac  Gill,  23. 
Cummings  v.  Stewart.  523,  645. 
Cummings  v.  Tindall,  521. 
Cummings  v.  Vorce,  44,  48,  49,  320, 

325.  338.  541. 
Cunningham  v.  Baker.  123.  124. 
Cunningham    v.    Metropolitan    Co., 

658. 
Cunningham  v.  Mitchell,  282. 
Cunningham   v.    Skinner,   574. 
Cunningham    v.    Stoner,    514,    533, 

538,  593,  600. 
Curry  v.  Johnson,  283. 
Curry  v.  Wilson,  79,  464,  467. 
Currier  v.  Ford,  673. 
Curtis  V.  Broat,  17S.  179.  180. 
Curtis  V.  Jones.  118.  020. 
Curtis  V.  Riddle.  27. 
Cusbenden  v.  Harman,  374,  392. 
Cushlng    V.    Longfellow,    4C8,    477, 

478,  509. 
Cutler   V.   Rathbone,   541,   681. 
Cutter  V.  Wait,  29. 

D. 

Daggett  V.  Davis,  293,  326. 
Daggett  V.   Robins.   14.   19,  23,  36, 

40.  43.  49.  440.  649. 
Dahler  v.  Steele.  441. 
Dalley  V.  Dismal  Swamp,  506. 
DalgleiHh   v.  G randy.  611. 
Dalby   V.   Campbell,  418. 
Dale   V.   Gilbert,   S.'in.  367. 
Dame  v.  H.ildwin,  289. 


Dame  v.  Dame,  43.  106. 
Dame  v.  Fales,  270. 
Bamon  v.  Bryant.  286. 
Damron  v.  Roache,  482,  559. 
Dana  v.   Bryant.  623. 
Dana  v.  Fiedler,  465,  478. 
Daniels  v.  Ball,  112. 
Daniels  v.  Cole,  254,  569. 
Daniels  v.  Brown,  142,  148. 
Danie's  v.  Mansbridge,  409. 
Daniels  v.  Owens,  71. 
Daniels  v.  Patterson,  370,  37S. 
Daniels   v.   Pond,   95. 
Dannels  v.  Fitch,  307. 
Darling  v.  Tegler,  321,  338,  6'/ 
Darnall  v.  Bennett,  514,  570. 
Darrah  v.  Baird,  32. 
Dart  V.  Horn,  551.  629,  650. 
Darter  v.  Brown,  563. 
Dauniiel   v.   Gorhani,  330. 
Davenport  v.  Ledger,  201,  202. 

510. 
David  V.  Bradley,  495. 
David  V.  Carlisle,  190. 
Davidson  v.  Sechrest,  253. 
Davidson  v.  Gunsolly,  496. 
Davidson  v.  Waldron,  111,  11!^ 
Davies  v.  Richardson's  Exrs., 
Davies  v.  Crow,  392,  414.  488. 
Davis  v.  Culver.  575.  582. 
Davis  v.  Easley,  98,  153.  177. 
Davis  V.  Fenner,  411. 
Davis   V.  Gambert.   235. 
Davis   V.    Harding.    374,    381. 

442. 
Davis  V.  Loftin,   113,   114. 
Davis  v.  McFarlane,  33. 
Davis  V.  Oswell,  482,  486. 
Davis  V.  Taylor.  89. 
Davis  V.  Van  de  Mark.  85. 
Davis  Co.  V.  Best.  487, 
Davidson  v.  Gibson,  453. 
DavlHon  v.  Gill.  270. 
DawHon  v.   Baum.  50. 
DawHdii  v.  Cropp,  614. 
Da  WHOM  v.   SpnrkH.  665. 
DawHon  v.  TbU-pen,  453.  676. 


483. 


46S\ 
4S'J. 


3:'2. 


xlviii 


TABLE  OF  CASES  CITED. 


Dawson     v.    Wothciltee,    441.    442, 

445.   454. 
Day  V.  "VVoodworth,  488. 
Dayo  V.   Provinslci,  2G5. 
Dayton  v.  Fry.  120.  28fi. 
Deacon    v.    Powers,    144,    146,    525, 

570. 
Deal  V.  Osborne.  202,  461,  660. 
DeArcy  v.  Steuer.  576. 
Debord  v.  Johnson,  532.  600. 
DeBow  V.  McClary,  684. 
Dearborn  v.  Kelley,  351,  368. 
Deardorff  v.   Timer,  351,  352,  360, 

544. 
Dearmon  v.  Blackl)urn.  239.  244. 
Deck  V.  Smith.  138,  373,  463. 
Decker  v.  Andeison,  386,  391. 
Decker  v.  Judson,  388,  393. 
Decker  v.  Livingston,  145,  614,  615, 

617. 
Decker  v.  Mathews,  24,  579. 
Dederick  v.  Brandt,  56.  280.  431. 
Deeter  v.  Sellers,  322,  341,  529. 
Deford  v.  Hutchinson,  575,  640. 
De  Forrest  v.  Luts.  553. 
Degering  v.  Flick,  82,  637. 
Dehority  v.  Paxson,  196. 
Delancey  v.  Holcomb,  320. 
Delaney  v.  Canning,  295.  588. 
Demeis  v.  Clemens,  401,  408. 
Delaware  R.  R.  v.  Prettyman,  219. 
Demick  v.  Chapman,  113. 
De  Mott  V.  Hagerman,  98,  145. 
Dench  v.  Walker,  327. 
Denison  v.  Sawyer,  187. 
Denis   v.   Barber,   460. 
Dennis  v.   Crittenden,  544. 
Denny  v.  Bennett,  269. 
Denny  v.  Reynolds,  392. 
Densmore  Co.  v.  Shong,  72,  284. 
Denton  v.  Smith,  598. 
Dentzell   v.  City  &   Suburban   Co., 

211. 
Denver  Co.  v.  Frame,  529. 
Depew  V.  Beakes,  303. 
Depew  V.  Leal,  71,  143,  549. 
Depriest  v.  McKinstry,  80,  534,  635. 


Derby  v.  Gallup,  464. 
De  St.  Aubln  v.  Field,  60. 
Desbecker   v.    McFarline,    59,    303, 

316,  570.  572. 
Deshler  v.  Dodge.  265.  577. 
Deshon  v.  Bigelow.  310,  313 
De  Thomas   v.   Withcrbee.  79. 
Detroit    Daily    Post    Co.    v.    McAr- 

thur,   512,   513. 
Devendorf   v.    Wert,    458. 
Dewey  v.  Bowman,  185. 
Dewey  v.  Hastings,   430.  654,   682. 
Dewint  v.  Wiltsie,  483,  484. 
De  Witt  V.  Morris,  162,  271.  460. 
De  Witt  V.   Perkins.   317. 
De  Wolf  V.   Harris.   144,   196,  523, 

543. 
De  Wolf  V.  Rabaud,  453. 
Deyerle  v.  Hunt,  535. 
Deyo  V.  Jennison,  237. 
Dezell  V.  Odell,  12G.  279. 
Dias  V.  Freeman.  371.  389. 
Dibble  v.  Morris.  487. 
Dickinson  v.  Boyle.  482. 
Dickinson  v.   Lovell,   567. 
Dickinson  v.  Noland.  444.  454,  551. 
Dickson  v.  Mathers,  23,  106. 
Dillard  v.  McClure,  571,  586. 
Dillard  v.  Samuels,  358,  547,  688. 
Dillenbac  k  v.  Jerome,  527,  557. 
Dillery  v.  Berwick,  599. 
Dillingham  v.   Smith.  170.  604. 
Dillon  V.  Wright.  280. 
Dilworth  v.  McKelvy.  495,  499,  660, 

661. 
Dimond  v.  Downing,  131.  609. 
Diossy  V.  Morgan.  82. 
Ditson  V.  Randall,  311. 
Ditto  V.  Pease,  285. 
Dix  V.  Van  Wyck,  50,  205. 
Dixon   V.    Atkinson,   210,   639,   640. 
Dixon  V.  Duke,  574,  575. 
Dixon  V.  Hancock,  111,  164. 
Dixon  V.  Niccolls,  148. 
Dixon    V.   Thatcher.   108,    111,    114, 

142.  562. 
Doak  V.  The  Exrs.  of  Snapp,  479. 


TABLE  OF  CASES  CITED. 


xlix 


Dobbins  v.  Hanchett,  675. 

Dobson  V.  Owens.  76. 

Docking  v.  Frazel!,  27. 

Dodd  V.  Dudderar.  26.  27. 

Dodd  V.  McCraw.  129. 

Dodd    V.    Williams-Smithson    Co., 

51.   587. 
Dodge  V.  Brown,  153,  170. 
Dodge  V.  Runels.  468. 
Doe  V.  Martyr,  291. 
Dogan  V.  Bloodworth.  54.  281. 
Dole  V.  Kennedy,  603,  025. 
Domestic  Society  v.  Hinman,  235, 

265. 
Dominick  v.  Eacker,  271. 
Donaldson  v.  Johnson,  623,  629. 
Donnelly  v.  Wheeler,  256. 
Donohoe  v.  McAleer,  423. 
Donohue  v.  Henry,  475. 
Doogan    v.    Tyson,    358,    359,    371, 

381.  393, 
Dooley  v.  Crist,  90. 
Dorsey  v.  Gassaway,  452,  460,  491, 

511. 
Dorsey  v.  Manlove.  460,  510,  517. 
Dorrington  v.  Meyer,  400,  573. 
Dorus  V.  Soniers,  364. 
Doty  V.  Gorhan.  90. 
Doty  V.  Hawkins,  335. 
Douch  V.  Rahner.  250. 
Dougherty   v.   Fowler,   65. 
Dougherty    v.     Galwey,    404,     408, 

664. 
Dougheily  v.  Spencer,  27. 
Douglass    V.     Douglass,     375,     380, 

402.  406. 
Douglass  V.  Gardner,  135,  352,  532. 
Douglass  V.  Garrett,  437.  457,  605, 

606. 
Douglass  V.  Kraft,  471.  480. 
Douglas  V.  Unmack,  404. 
Douty  V.  Bird.  516. 
Dow  V.  Dempaey,  50,  80,  85,  320. 
Dow  V.  Rattle,  643. 
Dow  V.  Sudbury,  224. 
Dowel]    V.    Richardson.     154.     221, 

C24,   629. 


Downey  v.  Arnold,  56,  66. 
Downham  v.  Ray,  575,  587. 
Dows  V.  Bignall,  88,  160. 
Dows  V.  Greene,   114. 
Dews  V.  Rush,  460. 
Dozier  v.  Joyce,  439,  566. 
Drake  v.  Auerbach,  24,  375,  662. 
Drake  v.  Crane,  253. 
Drake  v.  Wakefield,  136. 
Drane  v.  Hilzheim,  631,  646. 
Draper  v.  Ellis,  556. 
Dreycot    v.    Pint,    160. 
Dreibohm  v.   Yancey,  537. 
Dreyfus  v.  Gage.  51,  123,  208. 
Driscoll  V.  Place,  270. 
Drummond  v.  Hopper,  45,  292. 
Dubois  V.  Glaub,  478.  516. 
Dubois  V.  Harcourt,  112. 
Dubois  V.   Kelley,   89. 
Dudley  v.   Hawley,   291. 
Dudley  v.  Ross,  42,  225. 
Duffus  V.  Furnace  Co..  30,  215. 
Duffus  V.  Schwinger,  79,  602. 
Duffy  V.  Merrill.  23. 
Dufresne  v.  Hutchinson.  297. 
Dugan  V.  England,  370. 
Duke  V.  Shackelford.  215. 
Dunbar  v.  Bittle,  623. 
Dunbar  v.  Scott,  305. 
Duncan  v.  Owens,  132. 
Duncan  v.  Spear.  112.  439.  566. 
Dunham  v.  Dennis.  583. 
Dunham  v.  Troy  Union  R.  R.,  130. 
Dunham   v.   Wytkoff,   44,   105,   240. 

556.  5.')7. 
Dunkin  v.   M(  Kcc.   127. 
Dunlap  V.  Hunting    127. 
Dupont  V.   Amos.  536. 
Durell   V.   Haloy,  311.   312. 
Durfee  v.  Grinnell,  191,  202,  531. 
Durfee  v.  JoncK.  116. 
Durrell  v.  Richarduon,  167. 
DurHt   V,   Hurlun.  473.  479. 
Dwlght   V.   Bn-WRler.  327. 
Dwight   V.   Knaa.  645.  047. 
D'Woir    V      llanlK.     114,     11.'..    140. 

G05. 


TABLE  OF  CASP:S  CITHD. 


Dyer  v.  Pearson,  291. 
Dynes  v.  Hoovei*,  270. 

E. 

Eakin  v.  Eakin.  141,  142,  145. 

Eales  V.  Francis,  124. 

Earl  V.  Camp,  127,  247,  257,  271. 

Earl  V.  Tupper,  486,  487,  488. 

Earle  v.  Burch,  531,  640. 

Easly  V.  Boyd,  522. 

Eason  v.  DeLong,  216. 

East  Boston  Co.  v.  Persons,  681. 

East  India  Co.  v.  Hensley,  293. 

Easter  v.   Flemming,  54. 

Easter  v.  Foster,  666. 

Easter  v.  Goyne,  200. 

Easter  v.  Trayler,  243,  428. 

Eastman  v.  Barnes,  367. 

Eastman  v.  Harris,  181. 

Easton    v.    Worthington,    439,    466. 

645. 
Eaton  V.  Caldwell.  623. 
Eaton    V.    Langley,    52,     172,     182, 

653. 
Eaton  V.  Monroe,  313. 
Eaton  V.  Southby,  36,  37,  41. 
Echepare  v.  Aguirre,  638. 
Eddings   v.    Bonner,    51,    132,    157, 

534.  587,  589. 
Eddy  V.  Beal,  542,  543,  550,  682. 
Eddy  V.  Davis,  48. 
Eddy  V.  Hall,  26. 
Edelen  v.  Thompson,  561,  624,  630. 
Edgerly  v.  Emerson,  155. 
Edinger  v.  Grace,  208. 
Edmonds  v.   Groves,  604,   607. 
Edmunds  v.   Hill,  322. 
Edmunds  v.  Leavitt,  568. 
Edwards  v.  Bricker,  413,  487. 
Edwards  v.  Eveler,  35,  158,  598. 
Edwards  v.  MoCurdy    564. 
Edwin  V.  Cox,  366,  379. 
Eggleston  V.  Mundy.  129,  185. 
Eickhoft    V.    Eikenbary,    357,    364, 

375,  377,  400,  402. 
Eidson  v.  Woolery,  373. 


Eikenbary    v.    Clifford,    250,    255, 

569,   652. 
Elsendrath  v.  Knauer,  112,  117. 
Eisenhart  v.  McGarry,  402,  659. 
Ela   V.    Bankes,   638,   661. 
Ela  V.  Shepard,  271. 
Elder  v.  Fielder,  401. 
Eldred   v.    Bennett,  389. 
Elder  v.  Greene,  383,  404,  585,  657. 
Eldred  v.  The  Oconto  Co.,  49,  172, 

175,  323,  325,  553,  628. 
Eldridge   v.    Adams,    37,    134,    329, 

330. 
Elliott  v.  Black,  91,  92,  276,  371. 
Elliott  V.  First  National  Bank,  571. 
Elliott  V.  Hart,  159. 
Elliott  V.  Powell,  97,  98. 
Elliott  V.  Whitmore,  250. 
Ellis  V.  Culver,  35.  629. 
Ellis  V.  T>ersner,  47,  132,  136. 
Ellis  V.   Simpkins,   120,  142. 
Ellis  V.  Wire,  479. 
Elmore  v.   Elmore,  533. 
Ellsworth  v.  Henshall,  161. 
Ellsworth  V.  McDowell,  29. 
Ely  V.   Ehle,   43.  46,  lOG,  333,    1.37, 

555,  556,  605,  606. 
Elwes  V.  Briggs  Gas  Co.,  115. 
Emerick  v.  Sloan,  228. 
Emerson  v.  Bleakley,  580,  685. 
Emerson  v.  Whittaker,  75. 
Emmons  v.  Dowe,  112,  609,  626. 
Enck  V.  Gerding,  191. 
England  v.  Forbes,  299. 
English  V.  Dalbrow,  38,  4  8.  134. 
Enos  V.  Bemis,  228,  579,  590. 
Enos  V.  Snyder,  26. 
Enright  v.  Felheimer,  298. 
Entsminger  v.  .lackson,  572. 
Epperson  v.  Van  Pelt,  79,  659. 
Erecca  v.  Meyer,  237. 
Erie  Savings  Bank  v.  Roop,  138. 
Erlinger  v.  The  People,  370. 
Eslava  v.  Dillihunt,  631,  645,  6»(;. 
Esshom    V.    Watertown    Co.,    188, 

190,   207,   209,  579,  674. 
Esson  V.  Tarbell,  131. 


TABLE  OF  CASES  CITED. 


li 


Estes  V.  First  National  Bank,  198. 
Estey  V.  Love,  532. 
Elter  V.  Edwards,  332.  450. 
Etringham  v.  Handy,  537. 
Evans  v.  Brander,  5,  12,  17,  273. 
Evans  v.  King,  3S1.  S9S.  426. 
Evans  v.  Parker,  278. 
Evans  v.  Bouton.  266,  546. 
Evans  v.  Warren,  211. 
Everett  v.  Akins,  636,  652. 
Everett  v.  Brown,  204. 
Everett  v.    Buchanan,   292. 
Everett  v.  Coffin.  122. 
Eveleth  v.  Blossom,  135. 
Everett  v.  Coffin,  118.  334. 
Everit  v.  Walworth  Co.  Bank,  630. 
Ev.ing  V.  Blount,   156. 
Ewing  V.  Vanarsdall.  017. 
F^x  parte  Chamberlain,  7. 
Ex  parte  Wright.  679. 


Fagen  v.  Davison.  482. 

Faget    V.    Brayton.    450,    555,    559, 

632. 
Fahnestock  v.  Gilham,  90,  91,  358, 

363. 
Fair  v.   Citizens'  Bank,  377,   664. 
Fairbanks  v.   Molloy,  215. 
Fairbanks  v.  Phelps,  105,  111. 
Fairbanks  v.  Witter,  488. 
Fairman  v.  F'luck,  517,  619. 
Falk  v.  DeCou.  187,  209,  570. 
Fallon  V.  Manning,  452.  495,  499. 
Fant  V.  Wilson.  363,  391. 
Farley    v.    Lincoln,    306.    310,    312. 

313.   323,  335. 
Farmers'    1  oan   &    Trust    Co.,     v. 

Com.  Bank.  630,  631,  645. 
Farnham  v.  .Moor,  498,  499. 
Farmers'  Alliance  v.  M(  Elhannon, 

156.  159. 
Farr  v.  Kllgour,  123.  215. 
Farrar  v.  Bell.  125. 
Farrar  v.  Chauff«'lctc,  334. 
Farrcll   v.    Danbury.   188. 
F'arrell   v.   Hil'!r»fh.  202. 


Farrah  v.  Bursley,  655. 
Farrand  v.   Borrd,  etc.,  26,  492. 
Farrow  v.  Wooley.  55. 
Farson  v.  Gilbert.  410. 
Farrington  v.  Payne.  320. 
Farrow   v.   Orear,  390. 
Farweil  v.  Boyce,  298. 
Farwell  v.  Fox.  153,  154,  155,  156. 
Farweil   v.  Hanchett,  323. 
Farwell  v.  Warren,  511. 
Faulkner  v.   Brown.  495. 
Faulkner  v.  Klamp,  298,  301. 
Faulkner  v.    Meyers,   627. 
Fawcett  v.  Osborn,  290. 
Fay  V.  Burdett,  321,  570. 
Fay  V.  Duggan,  144.  529. 
Fay  V.  Parker.  511. 
Fayette  Ins.  Co.  v.  Rogers.  522. 
Feagin  v.  Pearson.  502. 
Fearn  v.  Filica.  604. 
Feder  v.  Abrahams.  80.  299,  316. 
Feder  v.  Daniels,  637. 
Federhen  v.  Smith,  84,  555.  678. 
Feeny  v.  Howard.  576. 
Felheimer  v.  Hainline.  371. 
Fell  V.  Taylor.  529. 
Feller  v.  McKillip,  202. 
Fenn  v.  Harrison,  293. 
Fenner    v.    Kirkman.    338. 
Ferguson  v.  Day.  71,  143,  285,  529. 
Ferguson   v.  Lauterstein,  55,  214. 
Ferguson   v.   Moore,   612. 
Ferguson  v.  Thomas.  185. 
Fernald   v.  Chase.  320.  328. 
Fernald   v.    Lin.scott,   101.   102. 
Ferrell    v.    Humphroy.   607. 
Fettyplace  v.  Dutch.  168. 
Fidelity  Co.  v.  Sturtevant.  196. 
Fidler  v.  Delavan,  554. 
Fi.llcr  v.  McKlnley.  460. 
Fiedler   v.   Maxwell,  280.  328. 
Field  V.  Lumbard.  406,  658. 
Field   V.   r'opl.   467. 
Fielding  v.  SliverKlPln,  408.  666. 
Fields   v.   Jol)Hon   Co..   211. 
Fifth    National    Bunk,   Cbl.uw"    v. 
Bay  ley.     ir.K. 


lii 


TABLE  OF  CASES  CITED. 


Filley  v.  Norton.  CS. 

Findlay  v.  Knickerbocker  Co.,  4G3, 

4G4.  4G8,  513,  642. 
Fines  v.  Bolin.  26,  315.  316. 
Finehout   v.    Grain,    420,   565. 
Finley  v.  Quirk,  437. 
First  National  Bank  v.  Barse  Co., 

209. 
First    National    Bank    v.    Calkins, 

197,  586,   641. 
First   National    Bank    v.    Crocker, 

167. 
First    National    Bank    v.    Crowley, 

165,  499. 
First    National    Bank    v    Gabbard, 

680. 
First   National    Bank    v.    Hughes, 

204,  536. 
First    National    Bank   v.    Johnson, 

211. 
First  National  Bank  v.  Parkhurst, 

590,    675. 
First  National   Bank  v.  Ragsdale, 

139,  191,  203,  205,   206,  531,  569, 

592. 
First  National  Bank  v.  Wood,  588, 

675. 
Firth   V.    Purvis,    613. 
Fischer  v.   Burchall,  590,  674. 
Fischer  v.  Busch,  245. 
Fischer  v.  Cohen,  213,  640,  689. 
Fish  V.  Ferris,  77. 
Fisher  v.  Alsten,  69,  532. 
Fisher  v.  Brown,  547,  549,  664. 
Fisher  v.  Conant.  299,  301. 
Fisher  v.  Kyle,  292. 
Fisher  v.  Marquette  Judge,  245. 
Fisse  V.  Katzentine.  369,  400,  573. 
Fisher  v.  Woollery,  36,  456. 
Fister  v.  Beall,  683. 
Fitch  V.  Dunn,  127,  279. 
Fitch  V.  Newberry,  296,  337. 
Fitz  V.  Bynum,  301,  602. 
Fitzer  v.  McCannan,  630. 
Fitzhugh  V.  Wiman.  644,  645,  648. 
Flanagan  v.  Newman,  237. 
Flannigan  v.   Goggins,  23,   475. 


Flanders  v.  Lyon,  537. 

Flutner  v.  Good,  80. 

Fleet  V.  Hertz.  530. 

Fleet  V.  Lockwood,  441,  444,  454. 

Fletcher  v.  Nelson,  582,  634,  642. 

Fletcher  v.  Wilkins,  36. 

Flinn  v.  Ferry,  69,  207,  586,  597. 
655. 

Florrance  v.  Goodin,  363. 

Florence  Sewing  Machine  Co.  v. 
Warford,  208. 

Flynn  v.  Jordan,  324. 

Fobes  V.  Shattuck,  150,  173,  174. 

Fonda  v.  Van  Home,  46,  134,  333. 

Fontleroy  v.  Aylmer,  554. 

Forbes  v.  Boston  Co.,  62. 

Forbes  v.  Fitchburg  Co.,  146. 

Forbes  v.  Martin,  214,  322. 

Forbes  Co.  v.  Wilson,  215. 

Ford  V.  Bushor,  245. 

Ford  V.  Caldwell,  136. 

Ford  V.  Cobb,  28.  30. 

Ford  V.  Ford,  119.  437,  623,  624, 
625. 

Fordham  v.  Akers,  13. 

Fordice  v.  Rinehart,  155,  156,  159. 
653. 

Forsyth  v.  Wells,  33,  180,  507. 

Fort  V.  Saunders,  477. 

Fort  Dodge  v.  Moore,  159. 

Fort  Wayne  Corporation  v.  Secur- 
ity Co.,   654. 

Forth  V.  Pursley,  105,  108. 

Forty  V.    Imber,   617. 

Foshay  v.  Ferguson,  306,  320,  336. 

Foss  V.  Marr,  35,  658. 

Foss  V.  Stewart.  237,  257. 

Foster  v.  Bringham.  406. 

Foster  v.  Chamberlain.  682. 

Foster  v.  Hall,  589,  594. 

Foster  v.  Napier,  409. 

Foster  v.  Pettibone,  235,  244,  248. 

Foster  v.  Tucker,  289. 

Fouldes    V.    Willoughby,    330. 

Foule  V.  Mann.  54.  78. 

Fowler  v.  Down.  110.  114. 

Fowler  v.  Hawkins,  148. 


TABLE  OF  CASES  CITED. 


liii 


Fowler  v.  Hoffman.  106,  435,  650. 

Fowler  v.  Parsons,  121,  122,  123. 

Fowler  v.  Stonum.  38. 

Fox   V.   Cox,   598. 

F'ox  V.  Hanbury,  142. 

Fox  V.  Prickett.  49.  552. 

Foy  V.  Reddick,   89,  95. 

Fralick  v.  Presley.  491. 

Franciscus   v.   Reigart.   617. 

Frank  v.  Brown,  654. 

Franks  v.  Matson.  371,  413. 

Francisco  v.  Benepe,  72. 

Frankle  v.    Douglass,  235. 

Fraser  v.  Davie,  617. 

Fraser  v.   Little.  384. 

Fray  v.    Drahos.   375. 

Frazier  v.  Goar.  232. 

Frazier  v.  Fredericks,  35.  451,  466, 

467. 
Frazier  v.  Laughlin,  396,  623. 
Freas  v.  Lake,  62G,  627. 
Freeborn    v.    Xorcross,    465. 
Frederick      v.      Mecosta      Circuit 

Judge,  657. 
Fredericks  v.  Tracy.  634. 
Freeman  v.  Bluet,  8. 
Freeman  v.  Carpenter.  160. 
Freeman  v.  Davis.  352. 
Freeman  v.  Howe.  259.  169,  440. 
Freeman  v.  United  States  Co.,  409, 

417. 
Frei  v.  Vogel,  365,  4r).j. 
Freshwater  v.   Nichols,   113. 
Frey  v.  Drahos.  450,  462,  495. 
Frey  v.  Leeper,  422.  424. 
Frifk  Co.  v.  Stephens,  581,  653. 
Friend  v.  Green,  660.  683,  686.689. 
Frlerson  v.  Frlerson,  114. 
Frink  v.  Flanagan,  542,  543,  681. 
Frisboe  v.  Langworthy,  185.  285. 
Frishchman    v.    Mandcl,    317.    572. 

589. 
Frome  v.  DennlB,  293. 
FroHh  V.  Naylor.  255. 
FroHh  V.  Deerlng,  365 
FroHt  V.  .Mott.  255,  256.  567. 
Frotliingbutn  v.  .MrKiinick,  101.  10.'!. 


Fruits  V.  Elmore,  575. 

Fryatt  v.  The  Sullivan  Co.,  90.  96. 

296. 
Fulkerson  v.  Dinkins,  637. 
Fullane  v.  Cummings,  25. 
Fuller  V.  Brownell.  32,  69,  76,  591. 
Fuller  V.  Chamberlain,  647. 
Fuller  V.  Paige,  170. 
Fuller  V.  Tabor,  96,  328,  382. 
Fuller  V.   Torson.   324. 
Fullerton   v.   Miller.   369. 
Fullerton  v.  Morse.  527. 
Fulton  V.  Heaton.  271. 
Fultz   V.   Wyckoff.   516. 
Furguson  v.  Twisdale,  206. 
Furlong  v.  Cox,  202. 
Furman  v.  Tenny,  254,  570,  575. 
Funk  V.  Israel,  234,  242,  648. 
Furniss  v.  Hone,  308. 


Gaff  V.  Harding,  133. 

Gafford  v.  Stearns.  56,  73,  76,  125, 

145.   188.   316. 
Gaillard   v.  Hudson,  680. 
Gaines  v.  Becker,  127,  199. 
Gaines  v.  White,  639.  642. 
Gaines  v.  Harvin,  136. 
Gaines  v.  Tibbs.  560.  561.  616. 
Galusha  v.    Butterfield.   605. 
Galvin  v.  Bacon.  291,  294,  310.  335. 
Gallagher  v.  Bishop.  43,  134,  436. 
Gallarati  v.  Orser,  363,  406.  644. 
Gallick    V.    Bordeaux,    54.    55,    80, 

494,  576.  588,  676. 
Gallup  V.  Wortman.  266,  4<i6,   410. 

413,    657. 
G:inil)le  v.  Cook,  74. 
Gamble  v.  Wilson.  57.  4'.i\.  536. 
Gano  V.  Hart.  615. 
Garbcr   v.    Palmer,    452. 
Garrla  v.  Gunn,  55.  56.  464. 
Gardner  v.   Boothe.  320. 
Gardn.T  v.  rimiplM-ll,  42.  237,  240, 

249. 
Gardner  v.   Diifih,  150.   176. 
CJardniT  v.  Gnrdiicr,  366. 


liv 


TABLE  OF  CASES  CITED. 


Gardner  v.  Heartt,  102. 
Gardner  v.  Humphrey,  555. 
Gardner  v.  Lane,  162,  G56,  672. 
Gardiner  v.  McDermott,  369,  404. 
Garlin  v.  Strickland,  3G5. 
Garrett   v.    Wood,    468.  -493,    502, 

644. 
Garth  v.  CaUlwell,  35,  586.  656. 
Garth  v.  Howard.  136,  137. 
Gartside   v.   Nixon,   113. 
Garvin  v.  Paul,  151. 
Garvin   v.   Wiswel,   25. 
Gassner  v.  Marquardt,  83.  86,  315. 
Gastin  v.  Johnson,  G60. 
Gates  V.  Rifle  Boom  Co.,  178. 
Gavigan  v.  Scott,  72,  530. 
Gay  v.  Morgan,  388. 
Gaynor  v.   Blewitt,  660. 
Gazelle  v.  Doty,  68. 
Gear  v.  Bullendick,  89. 
Geisendorff  v.  Eagles,  660. 
Gentry  v.  Bargis,  280,  564,  567. 
Gentry  v.  Templeton.  534.  671. 
George  v.  McGovern.  142.  529. 
George  v.  Hewlett,  72,  79,  121,  122, 

324,  356,  377. 
Gerard  v.  Dill,  407. 
Gerber  v.  Monie,  43,  566. 
Gerlaugh    v.    Ryan,    3.'J4,    355. 
German  Ins.  Co.  v.  Grim..  30.'j. 
Gevers  v.  Farmer,  59C,  597,  600. 
Gibbons  v.  Dillingham,  95, 
Gibbs   V.   Bartlett,    370,    373,    374, 

395,  441,  481,  501. 
Gibbs  V.  Bull,  348,  360. 
Gibbs  V.  Chase,  44,  333. 
Gibbs  v.  Jones.  290.  320. 
Gibson  v.  Ireson.  614. 
Gibson  v.  Jenny,   237,   256. 
Gibson  v.  Lenlwut,  ~4.  .^."),  294,  315. 
Gibson   v.   Mozier,   603. 
Gibson  v.  Stevens,  63,  151,  168. 
Gidday  v.  Witherspoon,  284. 
Griffin     v.     South     Western     Pipe 

Lines,   75. 
Gilbert    v.    Buffalo    Bill    Co.,    361, 

403.   532. 


Gilbert    v.    Forrest    City    Co.,    60, 

675. 
Gilbert  v.  Kennedy,  460. 
Gilbert  v.  Moody,  244. 
Gilbert  v.  Murray,  207. 
Gilbert   v.   Sprague,   193,   196,   407, 

414. 
Gildas   v.   Crosby,   85. 
Gill  V.  De  Armant,  26.  214. 
Gilchrist,  v.   Moore,  320,  334. 
Giles   v.    Elsworth,    614. 
Gillerson  v.  Mansur,  94. 
Gillet  V.  Fairchild,  523. 
Gillet  V.  Roberts.  79,  321,  345. 
Gillett  V.  Treganza,  33,  106. 
Gillham   v.   Kerone,   50. 
Gillies  V.  Wofford,  460.  558. 
Gilligan   v.   Stevens,   636. 
Gillilan  v.  Kendall,  314. 
Gilman  v.  Hill,  173. 
Gilman  v.  Will'-'ms  et  al.,  261. 
Gilmore  v.  Newton.  320,  326,  327, 

335. 
Gilmore  v.  Wilbur.  145. 
Gilson   V.   Wood,   468. 
Gimble  v.  Ackley,  22,  246,  337,  423. 
Gimson  v.  Woodfull,  290. 
Ginaca  v.  Atwood,  446,  506. 
Giroux   V.   Wheeler,   77. 
Gisbourne  v.  Hurst,  614. 
Glann   v.    Younglove,    504,   644. 
Glasscock  v.  Nave,  286. 
Glass  v.  Basin  Bay  Co.,  85,  532. 
Glenn  v.  Porter,  402,  405,  414,  654. 
Glidden  v.  Nason,  192. 
Globe  Co..  V.  Lessick  Co..  504. 
Globe  Works  v.  Wright.  424,  520. 
Glover  v.  Chase.  37,  38. 
Glover  v.  Hunnewell,  145. 
Goddard  v.  Jones,  198. 
Goddard   v.   Winchell,   74. 
Godfrey  v.  Bullin,  616. 
Goff  V.  Kilts,  88. 
Goff'V.  O'Conner,  89,  101. 
Colder  v.  Ogden.  126,  165. 
Goldsmith  v.  Bryant,  64,  341,  342. 
Goldstein  v.  Smith.  036,  642. 


TABLE  OF  CASES  CITED. 


Iv 


Goodell   V.   Bates,   405. 
Goodgame  v.   Sanders,  213. 
Golightly  V.  Reynolds.  182. 
Goll  V.  Hinton,  151. 
Goodheart  v.  Bowen.  234.  42G,  436. 

C5C. 
Goodman  v.  Aylin.  616. 
Goodman  v.  Churth,  500. 
Goodman  v.  Floyd,  504. 
Goodman  v.  Kennedy,  63. 
Goodman  v.  Sampliner,  299,  570. 
Goodrich  v.  Fritz.  234,  286. 
Goodrich  v.  Jones.  91. 
Goodtitle  v.  Bailey,  381. 
Goodwin  v.  Potter,  639,  640,  657. 
Goodwin  v.  Sutheimer,  53,  285. 
Gordon  v.  Farrington.  214. 
Gordon   v.   Harper,   105.   lOS. 
Gordon    v.    Hostetter,    155,   289. 
Gordon  v.  Little,  504,  652. 
Gordon    v.    Jenney,    170.    277.    385. 

423.  427.  428.  463. 
Gordon  v.  Williamson,  358. 
Gore  V.  Jenness,  101,  102,  103. 
Gorton   v.    Falkner,' 137,   614. 
Gotloff   V.    Henry,     561.    563.     565. 

567,  630. 
Gottesman  v.  Chipman,  251,   254. 
Gottschalk  v.  Klinger,  76,  209. 
Gould  V.  Hayes,  411,  504. 
Goulet  V.   Asseler.   493. 
Gould  V.  Barnard.  444,   4.'.4. 
GoiiM    V.    Scannell.    4:^,7.    4:58.    4.'2. 

457. 
Gould    V.    Warner.    350.    371.    378. 

388.  389,  393.  396. 
Gove  V.  Watson.  292.  514. 
Gov  in  V.  De  Miranda.  2  J.  4';  I.  465, 

475. 
Gowing  V.  Wprner,  302. 
Grace  v.   Mitchell.   43.    '.">.    17.    131. 

133,  135.  271. 
('•rutt  V.  Shannon,  88. 
(^Iraliani   v.   MycrH,   144. 
(]raham   v.    Hoder,   510. 
Grand   ForkH  Bank  v.  MlnnoapollH 

Co.,  186. 


Ml 


365, 


Grant  v.   Booth,  273. 

Graves  v.  Shoefelt,  369,  386. 

Graves  v.   Dudley,   24. 

Graves  v.   Morse.   61. 

Graves  v.  Siltig,  351.  352,  450.  452. 

465.  476.   497. 
Graves  v.  Ticknor,  342. 
Gray  v.  Dean,  656. 
Gray  v.  Griffith.  39. 
Gray   v.   Holdship,    101. 
Gray  v.  Jones.  481. 
Gray  v.  Nations.  35.  43,  452,  606. 
Gray  v.  Parker.  113.  153.  177.  181. 
Gray  v.  Rawson.  612. 
Gray  v.  St.  John.  297.  304. 
Gray's  Admx.  v.  Allen,  138.  294. 
Greaner  v.   Mullen.  307. 
Great     Western    Ry.    Co.    v. 

Comas,  110,  125. 
G'.eely    v.    Currier,    350,    361. 

444. 
Green  v.  Barker.  372. 
Green  v.  Chicago  Co.,  29. 
Green   v.  Dingley,  603. 
Green    v.    Dunn,    343. 
Green  v.  Holden,  240. 
Green  v.  Humphrey,  305. 
Green  v.   Patrhin,  679. 
Green   v.  Walker,   387. 
Greenherg  v.  Stevens,  81,  322,  652. 
Greenfield    Bank    v.    Leavitt.    468. 

470. 
Greenwade   v.    Fisher.   36. 
Greer  v.  Howard,  399. 
Greer   v.    Powell,   468. 
Gregory   v.   M<Dowell.   478. 
G reman  v.   I'nlted  States  Co.,  666. 
(Irever  v.  Taylor.  580.  592. 
Grler  v.  Cowan.  617. 
Griflln   v.   A1ho|)h.  343. 
Griffin   v.  Lung   Island  Co..  575. 
Crlffing   v.   CurtlHK.  571. 
Crifflth  v.  BoKar«lu8,  161. 
Grimih    v.   FowhM-,  289. 
Griffith    V.    KIchniond,   82.   s:\.    192. 

2U7.  357,  640.  060. 
(Jrlffifh   V.  Smith.  248.  27s 


Ivi 


TAHLK  OF  CA.SKS  CITED. 


Grimes  v.  Cannell,  143. 
Grinnell  v.  Phillips,  277. 
Griswold  v.  Boley,  320. 
Griswold    v.    Nichols,    302. 
Griswold  v.  Sundbaok,  82. 
Grinnell  v.  Young.  570,  593. 
Groat  V.  Gile,  163,  1G4. 
Grossman  v.  Walters,  302,  532,  601, 

602. 
Grubbs  v.  Stephenson,  409,  653. 
Guard  v.  Bradley,  395. 
Guild  V.  Rogers,  611. 
Guille  V.  Wong  Fook,  121,  158.  577, 

658. 
Gulett  V.  Lamberton,  88,  89. 
Gulledge  v.  Slayden  Co.,  316,  575. 
Gullett  V.   Otey,   598. 
Gumbell  v.  Pitkin,  269. 
Gumberg  v.  Goodstein,  591. 
Gunning  v.   Quinn,  123. 
Guthrie  v.  Jones,  91,  92. 
Guthrie  v.  Olson,  324. 
Gwillim  V.  Holbrook,  372. 
Guy  V.   Doak,   528,  661. 

H. 

Haas  V.  Altieri,  25,  474,  574. 

Haberer  v.  Walzer,  67. 

Hacker  v.  Johnson,  72. 

Hacker  v.  Monroe,   29,  298,  299. 

Hackett   v.    Bonnell,    649. 

Hackett  v.  Potter,  142. 

Hadley  v.   Hadley,  84. 

Haff  V.  Spicer,  542. 

Haffner  v.  Bomard,  124. 

Hagan  v.  Deuell,  234,  243,  244,  245. 

Hagan  v.  Lucas,  236,  381,  398,  426. 

Hagan  v.  Providence  &  W.  R.  R. 

Co.,  513. 
Haggard  v.  Wallen,  131. 
Haggerty  v.  Wilber,  272. 
Haight.v.  Turner,  540. 
Haile  v.  Hill,  501,  502. 
Hainer  v.  Lee,  86,  461. 
Haines  v.  Cochran,  64,  68,  293,  345, 

528. 
Hale  V.  Wlgton,  53,  121,  572. 


Hall  V.  Amos,  612. 

Halgren   v.   Campbell,  26. 

Mall  V.   Bassler,  321. 

Mali  V.  Boston  Co.,  62. 

Hall  V.  Bramwell,  240. 

Hall  V.  Corcoran,  292. 

Hall   V.    Dean,   160. 

Hal!  V.  Durham,  35,  156. 

Hall  V.  Gilmore.  297,  304. 

Hall   V.   Henline,  563. 

Hall  V.  Jenness,  645,  658. 

Hall  V.  Johnson,  284. 

Hall  V.  Kalamazoo,  85. 

Hall  V.  Law  Guaranty  Co.,  29,  573, 

659. 
Hall  V.  Monroe,  281,  366. 
Hall  V.  Naylor,  297. 
Hall    V.    Robinson,    133,    325,    330, 

335,  523,  524. 
Hall   V.   Smith,   369,  371,   434,  452, 

505,   644. 
Hall  V.  So.  Pacific  Co.,  295,  579. 
Hall  V.  Tillman,  357,  430,  468,  504. 

642,  652,  687. 
Hall  V.  Tittabawasse  Co.,  122,  123. 
Hall   V.  Tuttle,  112,   234,  238,   240. 

246. 
Hall  V.  White,  130,  341,  345,  436. 
Halleck  v.  Mixer,  95,  98,  100,  521, 

558. 
Hallenbrake  v.  Fish,  105. 
Hallett  V.  Byrt.  248. 
Hallett  V.  Fowler,  113,  441. 
Hallett  V.  Mountstephen,  350,  377, 

384. 
Halpin  v.  Stone,  143,  172,  670. 
Halterline  v.  Rice,  165. 
Hamaker  v.  Blanchard,  74. 
Hambly  v.  Trott,  521,  683. 
Hamer  v.  Hathaway,  464,  465,  471. 

477,  480. 
Hamberger  v.  Seavey,  430. 
Hamilton  v.  Browning,  203,  667. 
Hamilton  v.  Duty,  536,  586. 
Hamilton   v.   Fleming,  252. 
Hamilton  v.  Mitchell,  106. 
Hamilton  v.  Seegar,  195. 


TABLE  OF  CASES  CITED. 


hii 


Hamilton    v.    Singer    Manuf.    Co., 

333. 
Hamilton  v.  Stewart,  276. 
Hamlin  v.  Kassafer,  281. 
Hammond  v.  Donelson,  200. 
Hammond   v.   Eaton,   367. 
Hammond  v.  Morgan,  653,  667,  671. 
Hammond  v.  Solliday,  208.  633. 
Hampton  v.  State,  204. 
Hampton    Co.    v.    Sizer,    464,    4S7, 

642. 
Hanch  v.  Ripley,  121,  200. 
Hanchett  v.  Buckley,  67,  398,  589. 
Hanchett  v.  Humphreys,  659. 
Hanchett  v.  Riverdale,  302,  594. 
Hanchett  v.  Waterbury,  268. 
Hanlon  v.  Goodyear,  2S8.  591,  658. 
Hanlon  v.  OKeefe,  304.  665. 
Hannon  v.  O'Dell,  72,   416. 
Hanmer  v.  Wilsey,  514. 
Hannauer  v.  Bartels,  491,  493,  524. 
Handley  v.  Hathaway,  3C5. 
Hanford  v.  Obrecht,  436,  437,  438. 

605,  624,  625. 
Hanna  v.  International  Petlm.  Co., 

384. 
Hanna  v.  Steinberger,  261. 
Hannewell  v.  Duxbury,  298. 
Hanscon  v.  Burmood,  124,  640,  653. 
Hanselman  v.  Kegel,  254,  464. 
Hanson  v.   Bean,  640. 
Hanover  R.  R.  v.  Coyle,  516. 
Hanrahan  v.  O'Reilly,  91,  92. 
Hansard   v.  Reed,  371. 
Hanson  v.  Millett.  167. 
Harding  v.  Coburn,   1.'j9,   161.  325. 
Harding  v.  Eldredge,   70,  188. 
Hardwick    v.    Brookover,    240. 
Hardy  v.  Clrndening,  44.  333. 
Hardy  v.   Donellan,  151. 
Hardy  v.  Graham,  20S. 
Hardy  v.   Kceler.   422. 
Hardy  v.  Sprowle.  141.  142. 
Hare   v.   Stegall.  613. 
Harlngton  v.  Macmorris,  604,  607. 
Harker  v.  Dement.  567. 
Harl«'y  v.  Tillman.  70.  S3,  317. 


Harkness  v.   Russell,  213. 

Harlan   v.   Harlan.   22,   23,   90.   '•:?. 

97.  98.   in. 
Harman  v.  Fishar,  307. 
Harman  v.  Goodrich,  446. 
Harmon  v.  Collins,  412,  429. 
Harper   v.   Baker.   85. 
Harper  v.  Harper,  689. 
Harpending  v.    Meyer,   323,   680. 
llarrinian  v.  Wilkins,  350.  351.  3rj2, 

360. 
Harris  v.  Castleberry,  26G.  542. 
Harris  v.   Harris,   537,   640. 
Harris  v.  Hayfield.  82. 
Harris  v.  McCasland.  66.  321. 
Harris  v.  Hillman.  136.  338. 
Harris  v.  Newman.  179. 
Harris  v.   O'Gorman,  633. 
Harris  v.  Smith.  115,  311,  313.   I.S7. 

525.  557.  579. 
Harris  v.  Thomas.  51. 
Harrison  v.  Barnby.  (115.  CIS. 
Harrison  v.  Hoff.  75. 
Harrison  v.  MIntosh,  112.  113.  119. 
311,  437.  439,  563,  565,  568.  617. 
Harrison    v.    South    Carthage    Co.. 

194. 
Harrison  v.  Warren  Co..  I9."i. 
Harrison  v.  Wardle.  370. 
Harrison  v.  Wilkin.  385.  403. 
Harrod  v.  Hill.  374. 
Hart  V.  Cole.  255.  405. 
Hart  V.  Fitzgerald.  22,  35,  143,  1  II. 

153. 
Hart  V.  Morton.  172. 
Hart  V.  Ten  Eyck.  170. 
Hart  V.  Vlnsant.  97. 
Hart  V.  Wing.  67. 
H.irtford  v.  Jones.  155.  332. 
Hartgraves  v.   Duvnl.  444^  451. 
Hart  If  V.  Cole.  2:i9.  355. 
Hartley   Bank   v.    McCorkell.  491. 
Hartnian   v.    K<M\vln,   122. 
HartH  V.  Wendull.  379.  407.  413. 
Harvey   v.    Ivory.  G57. 
Harvi-y  v.  Stephens.  190.  CCO. 
Harvey  v.  St()l<««M,  388 


Iviii 


TABLE  OF  CASKS  CITED. 


Harward  v.  Davenport,  052,  CGI. 
Harwood  v.  Sniethurst,  22,  40.  48, 

106,  5G1,  508. 
Haskill  V.  Andros,  237,  256. 
Hasted    v.    Dodge,    503. 
Hatch   V.   Dwight,  102. 
Hatch  V.  Fowler,  34.  Ill,  113.  115. 

117,   135,   556. 
Hatch  V.  Hart.  48S. 
Hathaway  v.  St.  John.  135. 
Haveron  v.  Anderson,  587. 
Haverstick  v.  Fergus.  126. 
Hawes  v.  Smith.  381. 
Hawkins  v.  Eckles.  616. 
Hawkins  v.  Hoffman.  133,  330,  338. 
Hawkins  v.  Johnson.  559. 
Hawley  v.  Bates.  367. 
Hawley  v.  Kocher,  158. 
Hawley  v.  Warner,  392,  644. 
Hay  V.  Hayes,  271. 
Hay  V.  Muller,  654. 
Hayes  v.  Bronson,  354. 
Hayes  v.  Massachusetts  Co..  25. 
Hayes  Co.  v.  McKennon,  323. 
Hayes  v.  Slobodny,  633. 
Hays  V.  Berry,  256. 
Hays  V.  Windsor,  298,  486,  487. 
Hayden  v.  Anderson,  678. 
Haydon  v.  Haydon,  151. 
Hays  V.  Bonthalier,  421. 
Haythorn    v.    Rushforth,    105,    333, 

491. 
Hayward  v.  Seaward,  131. 
Hazlett  V.  Witherspoon,  357,  377. 
Hazzard  v.  Benton,  279,  286. 
Heagle  v.  Wheeland,  218,  222,  225, 

232. 
Heald  v.  Cary,  328. 
Healey  v.  Humphrey,  265,  267. 
Heard   v.   James,  42,   43,   143,  179, 

181,  512,  516. 
Heath  v.  Morgan.  323.  529,  534,  569. 
Heath  v.  West,  112. 
Hecht  V.   Bettman,  35. 
Hedderick  v.  Poutet,  364,  398. 
Hedman  v.  Anderson,  227. 
Heaton  v.  Flndlay,  93. 


Heeron  v.  Beckwith,  39,  445. 
Heffley  v.   Hunger,  589,  640. 
Heflin  v.  Slay,  193,  194,  208,  209. 
Heideman-Benoist    Co.    v.    Schott, 

197,  532. 
Heiman  v.  Witliers,  SO. 
Heinmullei'  v.  Giay,  OS."]. 
Heinrich    v.    Von    VVrinkler,    214, 

321. 
Hellings  v.  Wright.  OlO,  082. 
Helser  v.  Pott.  017. 
Hemenway  v.  Bassolt,  101. 
Hemstcad  v.  Colburn,  450. 
Hench  v.  Metzer,  083. 
Henderson  v.  Deshorough,  266. 
Henderson  v.  Hart,  532. 
Hendricks  v.  Decker,  119,  468,  556, 

557. 
Hendrickson  v.  Kingsbury,  510. 
Hennequin  v.  Clews,  77. 
Hennessey  v.  Barnett,  78,  208,  324, 

668. 
Henry  v.  Dillard,  664. 
Henry  v.  Ferguson,  408,  416,  638. 
Henry    v.    Fine, 
Hensley  v.   Brodie,  95. 
Hentz  V.  The   Idaho,  76,   171,  172, 

294,  315. 
Herbert  v.  Waters,  505. 
Herder  v.  Schwab  Co.,  414,  653. 
Herdic   v.   Young,   22,   36,   40,   111. 

181,  450.  509,  511. 
Herman  v.  Gervin,  686. 
Herman  v.  Kneipp,  323,  588. 
Herron    v.   Hughes,    133,    294,   328, 

552,  553. 
Hershey  v.  Fry,  217. 
Hershler  v.  Reynolds,  389. 
Herzberg  v.  Sachse,  591. 
Hester  v.  Ballard,  366. 
Hewitt  V.  Watertown  Co.,  32,  148. 
Hewitson  v.  Hunt,  37. 
Hewlett  V.  Owens,  142. 
Hews  V.  Walls,  633. 
Hewson  v.  Saffin,  628,  639. 
Heyland  v.  Badger,  44,  110,  184. 
Hexter   v.   Scbne'f'er,   r?" 


lAl-l-b:  OF  CASES  CITED. 


lix 


Heywood  v.  Tilson,  33ii. 
Hibbard  v.   McKindley,  405. 
Hicklin    v.    Nebraska    Bank.    364, 

399.  537. 
Hickey  v.  Hinsdale,  21,  39,  47.  82. 

88,  134.  673. 
Hicks  V.  Britt,  247.  320. 
Hicks  V.  Flint.  106. 
Hicks  V.  Fluit.  680. 
Hicks   V.    Hanklin.   293. 
Hicks  V.  Stull.  352. 
High  V.  Emerson.  67. 
High  V.  Wilson.  562. 
Highnote  v.  White,  527.  569. 
Hiles  V.  McFarlane.  421.  429. 
Hilger  v.  Edwards.  lO.";. 
Hill  V.  Bloomer,  444.  454. 
Hill  V.  Covell.  133,  326,  330. 
Hill  V.  Fellows,  645. 
Hill  V.  Freeman.  Ill,  297,  313. 
Hill  V.  Graham,  228. 
Hill  V.  Larrow,  124. 
Hill   V.   Miller,  50. 
Hill   V.   Reitz,  664. 
Hill  V.  Robinson.  111.  142,  154. 
Hill  V.   Stocking.   618. 
Hill  V.  Wilkinson,  688. 
Hiller  v.  Huffsmith,  143. 
Hills  V.  Parker,  25.  238.  239. 
Hills  V.  Pas.sage,  679. 
Hilson  V.  Blain.  612. 
Hinchman  v.  Patterson.  145. 
Hillyer  v.  Brodgen,  52. 
Hilman   v.   Brigham.  590,  674. 
Hilson    V.    Blain,    613. 
Hilton  V.  Osgood,  535. 
Hinchman  v.  Doak.  640,  655. 
Hinckley    v.    West.    623. 
Hlnkson  v.  Morrison,  357,  377. 
HIndle  v.  Blades.  349. 
Hlnes  V.  Allen,  245. 
Hines  V.    Ament,  95,  96. 
Hinman  v.  Borden.  274.  499. 
Hiscox  V.  Greenwood.   179, 
HlHler  V.  Carr.  43,  47S. 
Hltrhman    v.    Walton,    102. 


Hoadley  v.  Watson,  486,  487,  488, 

511. 
Hoag  V.  Breman,  648. 
Hoare   v.   Parker,  325. 
Hobbs  V.  Clark,  33.  634,  640. 
Hobbs   V.   My  res,  608. 
Hobson   V.   Gorringe.   30. 
Hochman  v.  Hauptman.  637. 
Hocker  v.  Strieker,  279. 
Hockberger  v.  Baum,  314.  599. 
Hodgeden  v.  Hubbard,  47. 
Hodges  V.  Cummings,  660. 
Hodges  V.  Nail,  GO,  85. 
Hodgkins  v.  Dennett.  167. 
Hodson  V.  Cummings,  495. 
Hodson   V.   Warner,   213.   313. 

677. 
Hoeffer  v.  Agee,  26,  143,  529. 
Hoeffner  v.  Stratton,  439,  656 
Hoefheiner  v.  Campbell.  273. 
Hoeser    v.    Kraeka.    504,    631, 

646. 
Hoester  v.  Teppe,  463.  662. 
Hoffman   v.   Carow.    288.   289. 

333. 
Hoffman   v 
Hoffman  v. 
Hoffman    v 
Hogan  V 
Hohenstein 

366. 
Hohenthal  v.  Watson.  446.  4 

504,  505. 
Hoke  V.   Applegatc.   157. 

677. 
Holbrook  v.  Hyde,  171. 
Holbrook    v.    Wight.    42. 

328.  340.  342.  645. 
Holcomb  V.  Davis,  3.';2. 
Holdcrman  v    .Manici-,  77. 

5S:!. 
Holiday   V.   HIikH.   160. 
Holler    V.    CoIchoii,    252. 

674. 
Holli'V    V.    .Mix.   647. 
ilollldny   V.   Bartholemac. 
H<ilil<lnv    V.    CarnHPlI,   520. 


Gorman,  660. 
V.  Noble.  311,  335. 
V.    Steinau.    409. 
Detroit  Co.,  216,  315. 

V.    Westminster 


i69. 


i40. 


640. 


291, 


588. 
Co.. 

456. 

579, 


lis.   i: 


124. 


I«4.    407. 


321. 


Ix 


TABLH  OK  CASES  CITED. 


TloIUday  v.  Lewis.  115,  116. 

Holliday  v.  McKinne,  576,  635,  652. 

Holliday  v.  Posfon,  86,  187,  657. 

Hollingsworth  v.  Dow,  118. 

Hollis  V.  Brandon.  540. 

Hollis  V.  Smith,  521. 

Hollister   v.    Goodale,    127. 

Holly  V.   Heiskell.  572. 

Holmark  v.  Molin,  ,313. 

Holmes  v.   Bell,  1S5. 

Holmes  v.  Langston,  79,  354,  494, 

536. 
Holmes  v.  Nuncaster,  562. 
Holmes  v.  Tarble,  574,  636. 
Holmes  v.  Wood,   605. 
Holt  V.  Van  Eps,  474. 
Holton  V.  Binns,  142.  144. 
Holten  V.  Lewis.  5G0. 
Homan  v.  Laboo,  319,  341. 
Honaker  v.  Vesey,  189,  468. 
Hood  V.  Judkins,  227,  228,  229. 
Hooker  v.  Hammill,  456,  462,  463. 
Hooker  v.  Latham,  23. 
Hooser  v.  Hays,  98. 
Hoover  v.  Rhoads,  542. 
Hope  V.  Lawrence,  138. 
Hopewell  v.  Price,  449. 
Hopkins  v.  Adams,  682. 
Hopkins  v.  Bishop,  322. 
Hopkins  v.  Burney,  457,  605,  606. 
Hopkins  v.  Davis,  64,  317,  592. 
Hopkins  v.  Drake,  239. 
Hopkins  v.  Green,  366. 
Hopkins  v.  Hopkins,  42. 
Hopper  V.  Hopper,  640,  642,  676. 
Hopkins  v.  Ladd,  388. 
Hopkins  v.  Shrole,  439. 
Hopkins  v.  Thompson,  524. 
Horgan  v.  Amick,  253. 
Horkey  v.  Kendall,  283,  285. 
Horn  v.  Barker,  63. 
Home  V.  Lewin,  613. 
Horner  v.  Boyden,  302. 
Horner  v.  Thwing,  292. 
Horr  V.  Barker,  62,  430. 
Horr  V.  People,  430. 
Plorton  V.  Vowel,  351,  685,  686. 


Horwood  V.  Smith,  290. 
Hoskins  v.  Robins,  506. 
Hoskins  v.  White,  366. 
Hosmer  v.  Clarke.  324,  342. 
Hotchkiss  v.   Ashley,   50,  624,  627, 

629. 
Hotchkiss  V.  Hunt,  168,  202,  313. 
Hotchkiss  V.  Jones,  22.  460. 
Hotchkiss  V.  McVickar,  111. 
Hotz  V.  Bollman,  364,  408. 
Houck  V.  Linn,  200,  203,  210,  280, 

535. 
Houghton  V.  Peck,  485. 
Houghton  V.  Ware,  352,  368. 
House  V.  Turner,  80.  84,  535,  655. 
Hove  V.  McHenry,  84,  237. 
Hovey  v.  Coy,  406. 
Howard  v.   Bartlett,   81,   125. 
Howard  v.  Black,  615. 
Howard  v.  Braun,  323,  339. 
Howard  v.  Crandall,  239. 
Howard  v.  Davenport,  139. 
Howard  v.  Deems.  195. 
Howard   v.   Dill,   611. 
Howard  Co.  v.  National  Bank,  120, 

208,  210. 
Howe  V.  Freeman,  259. 
Howe  V.  Handley,  365,  395,  421. 
Howe  V.  Shaw,  131,  134. 
Howell   V.    Foster,   584. 
Howett  V.  Estelle,  323. 
Howland  v.  Fuller,  257. 
Howland  v.  Woodruff,  291. 
Hoy  v.  Rogers,  363. 
Hoy  V.  Smith,  33. 
Hoyt  V.  Thompson,  523. 
Hoyt  V.  Van  Alstyne,  566. 
Hubloun's   Case,   105. 
Hudler    v.    Golden,    218,    219,    22.", 

226,  227. 
Hudelson  v.   First  National  Bank, 

51,  358,  542,  547,  572. 
Hudelston  v.  Huey,  56. 
Hudson  V.  Maze,  320,  325,  335. 
Hudson  V.  Snipes,  581. 
Hudson  V.  Swan,  121,  529,  571,  600. 
Hudspeth  v.  Wilson,  25. 


TABLE  OF  CASES  CITED. 


Ixi 


Huebschman  v.  McHenry,  89,  96. 
Huff  V.   Gilbert,  626,   633. 
Huggeford  v.  Ford,   464,   481,  506. 
Hughes  V.  Abston,  190. 
Hulman  v.   Benighof,  415. 
Hume  V.  Gillespie,   106. 
Hume  V.  Tufts,  112. 
Hume  Bank  v.  Hardsock,   194. 
Humfrey  v.  Misdale,  505. 
Humphrey  v.   Bayne,  156. 
Humphrey    v.    Taggart,    370,    371, 

389,  404,  413. 
Humphries  v.  Johnson,  511. 
Hungerford    v.    Redford,    97,    180, 

509. 
Hunn  V.  Hough,  279. 
Hunt  V.  Bay  State  Co.,  28. 
Hunt  V.  Bennett,  436.  567,  623.  628. 
Hunt  V.  Bullock,  185. 
Hunt  V.  Chambers,  38,  39,  45,  105, 

107.  112,  113,  144,  146,  439,  563, 

565,  567,  605. 
Hunt  V.  Holton,  186,  531. 
Hunt  V.  Kane,  135,  331. 
Hunt  V.  Pratt,  237. 
Hunt   V.   Robinson,    381,    398,    423, 

425,    426,    569. 
Hunt  V.  Rousmanier,  521. 
Hunt  V.  Strew.  108.  111. 
Hunter  v.    Hudson   Riv.,  eto..  297, 

556,   557. 
Hunter  v.  Hunter,  167. 
Hunter  v.  I.e  Conte.  613. 
Hunter  v.  Sherman.  378.  388,  396. 
Hurd    V.   Gallagher,   388. 
Hurd    V.    Simonton,   554,   555,   556, 

559. 
Hurd  V.  Wost.   !).   17,  1.".3. 
Hurst  V.  Cook,  566. 
Hurst  \.  (Jwennap,  110.  309. 
Hurst  V.   Starr,  84. 
HuHe  V.   Scholto,   211. 
HuHHey  V.  Thornton,  297,   313. 
Huston  V.  WIlKon,  628. 
HutchlriH  V.   Hut(hinH.  32K. 
Hut(hlnHon  v.  Hobo,  329. 


Hutchinson     v.     Hutchinson.     213, 

491. 
Hutchinson  v.  Hunter.  164. 
Hutchinson   v.    McClellan,   38,   277. 
Huthmacher  v.   l.owman,  299,  590, 

594. 
Hutt  V.  Bruckman,  50. 
Hutton  V.  Denton,  392. 
Hyatt  V.  Adams.  513. 
Hyatt  V.  Wood,  23S. 
Hyde  v.  Cookson,  170.  179,  180. 
Hyde  v.  Courtwright,  214. 
Hyland  v.  Bohn  Co.,  214,  322,  342. 

661,  670,  685. 
Hymes  Co.  In  re,  78. 
Hyde  v.  Noble,  294,  309. 
Hyde  v.   Stone,   464. 

I. 

Ice  V.  I.ockridge.  556. 

Ide  V.  Gilbert.  535. 

Illinois  Bank  v.  Stewart  Co.,  186. 

188. 
Illinois  Co.   v.  Le   Blank.  459.  479. 
111.  &   St.   L.   R.   R.   &  Coal   Co.   v. 

Ogle,    507. 
Illsley   V.    Stubbs,    22,   41.    42,    135. 

239.    240.    244.   246. 
Imel  V.  Van  Deren.  369,  371. 
Ingals   V.    Ferguson.    70,    13S,    139. 

144.   654. 
Ingalls    V.    Bulkloy,    «3,    320.    3:5. 

335.  343. 
Ingalls  V.  Lord,  17  I 
Ingersoll    v.    Fnuucrson,    lo.'*,    Itt7. 

115.   291.  296,  309. 
Ingersoll    v.    Van    Hokkclin,    495, 

496.  500. 
IngiobrlKht  v.   Hammond.  174,  176. 
Ingraham    v.    llummond,   4<i9,   563, 

065. 
Ingraham  v.  Mnrtiii,  436.  442. 
In  7f  ItrouHon  &  Mitchell,  541. 
In  ri-  Vogle,  239. 
Iowa  Dank  v.   Frink,  575. 
Ir«'y  V.  (Jorninn,  532. 
Iron  ClIfTM  Co.  v.  I  nhalH,  547. 


1X11 


TABLE  OF  CASP:S  CITED. 


Irvin  V.  Smith,  377,  379,  410,  6G7, 

685. 
Irving  V.  Motley.  30-1. 
Irwin  V.  Knox,  626. 
Isaac  V.  Clark,  45,  345. 
Isle  Royal  Co.  v.  Hertin,  178,  181. 
Ivey   V.    Hammock,    52. 
Ives  V.  Carter,  487. 
Ives  V.  Humphreys,  313,  402. 
Ivins  V.  Hines,  204. 


.Tack  V.  Martin,  624. 
.lackman  v.  Eaii  Claire  Bank,  212. 
Jackson  v.  Anderson,  160. 
Jackson  v.  Bronson.  102. 
Jackson   v.    Emmons,    416. 
Jackson  v.  Hale,  174. 
Jackson  v.  Nelson,  295,  464,  656. 
Jackson  v.  Rutherford,  157. 
Jackson  v.  Sparks.  40. 
Jackson   v.  Stockhard,   142. 
.Jackson  v.  Virgil,  542,  682. 
Jackson  v.  Watkins,  68,  597,  598. 
Jacobi  V.  Schloss,  235. 
Jakobi  V.  Gorman,   537. 
Jacobson  v.  Poindexter.  601,  687. 
Jacoby   v.   Laussatt.  333,  343,   344, 

345,   468. 
Jaffrey  v.  Brown,   214. 
James  v.   Fowler,   232. 
James  v.  Griffin,  307. 
James  v.  Stratton,  151. 
Jameson  v.  Kent,  484,  660. 
Jamieson   v.    Capron.    401,   429. 
Jamison  v.  Moon,  510. 
Jandt  V.   Potthast,  652. 
Janes  v.  Gilbert,  138. 
Jansen  v.  Acker,  250. 
Jansen  v.  Effey,  441,  451,  454,  645. 
Jarrard  v.  Harper,  438,  625. 
Jarvis  Admx.  v.  Rogers,  119,  294, 

474. 
Jefferson  v.  Chase,  293. 
Jp.ffery  v.  Bastard,  27.''.,  360. 
Jeffreys  v.  Greeley,  635. 


Jellett   v.    St.    Paul    Co.,    295,    494, 

514. 
Jenkins  v.  City  of  Ontario,  532. 
Jenkins   v.    Mitchell,    70,   143,    144, 

574.  587,  588,  654. 
.Fenkins  v.  State,  686. 
Jenkins  v.  Stoanka,  173,  630. 
Jenner  v.  Joliffe.  234,  327. 
Jenness   v.   Shrievcs,   236. 
Jcnness  v.  Sparkman,  662. 
Jenney  v.  Jackson,  92,  208. 
Jennings    v.    Cage,    298,    308,    309, 

311,  315,  373. 
Jennings  v.  Hare,  3.17. 
Jennings  v.  Johnson,  428,  498. 
Jennings  v.  Sparkman,  194,  198. 
Jcnnison    v.    Haire,   363,    373,    388, 

393,  394. 
Jermyn  v.  Hunter,  30. 
Jesse  French  Co.  v.  Bradley,  582. 
Jessop  v.  Miller,  312,  326,  338. 
Jimmerson  v.  Green,  105. 
Jimison  v.  Reefsneider,  614. 
Jocelyn  v.  Barrett,  43. 
Johansen  v.  Miller,  59. 
Johnson  v.  Bailey,  492. 
Johnson  v.  Barber,  93. 
Johnson   v.    Boehme,    665. 
Johnson  v.  Brandy.  61,  656. 
Johnson    v.    Carnley,    22,    39,    106, 

113,  439,  542,  554,  563. 
Johnson  v.  Evans,  151. 
.Johnson  /v.r  parte.  421. 
Johnson    v.    Eraser,   377,    483,   641, 

642,  587,   652,  656. 
Johnson  v.  Gallego?,  380. 
Johnson,  Admr.  v.  Garlick,  133. 
Johnson  v.  Hillenbrand,  572. 
Johnson    v.    Howe,    340,    438,    609, 

624,   628. 
Johnson  v.  Jones,  265. 
Johnson  v.  Johnson,  320. 
Johnson  v.  Marshall,  471,  502. 
Johnson  v.  Mason,  354,  376,  651. 
Johnson  v.  McLeod,  158. 
Johnson    v.    Neale,    105,    111.    170, 

441,  445,  554.   556,  565,  567.  568. 


TABLE  OF  CASES  CITKl). 


ixm 


Johnson  v.  Owens,  615. 
Johnson  v.  Peck.  288,  304.  309. 
Johnson  v.  Plowman,  564. 
Johnson  v.  Prussing,  5.  81,  615. 
Johnson  v.  Salisbury,  39. 
Johnson  v.  Selden.  212. 
Johnson  v.  Simpson,  208,  571. 
Johnson   v.   Weatherwax,   366. 
Johnson  v.  Weedman,  450,  493. 
Johnson  v.  Willey.  291,  293. 
Johnson  v.  Wilson,  195. 
Johnson  v.  Woolyear,  555,  605. 
Johnston   v.   McCart,  588. 
Johnston  v.  Milwaukee  Co.,  575. 
Jones  V.  Allen,  327.  470. 
Jones  V.  Anderson,  69,  187. 
Jones  V.  Buel,  31. 
Jones  V.   Clouser,  125. 
Jones  V.  Dowle,  136. 
Jones  V.   Dodge.   35. 
Jones    V.    Findley,    355,    356,    402, 

405. 
Jones  V.  Glathart,  189,  317. 
Jones  V.  Gundrim,  618. 
Jones  V.  Lowell,  500. 
Jones   V.   Loree,   667. 
Jones   V.    M'Neil,   648. 
Jones    V.    McQueen,   284,   576,   577, 

641. 
Jones  V.  Peasley,  122,  210. 
Jones  V.  Rahilly.  464,  570. 
Jones  V.  Richardson,  142. 
Jones  V.  Sinclair,  118. 
Jones  V.  Smith,  309. 
Jones  V.   Snyder,   635. 
Jones  V.  Spears,  340. 
Jones  V.  Taylor,  180,  292. 
Jones  V.  Thompson,  151. 
Jordan   v,   Dennis,  200,   080. 
Jordan  v.  p-lynn.  84. 
Jordan   v.  Hamilton  Bank,  204. 
Jordan  v.  Johnson,  82,  324,  591. 
.Jordan  v.  Thomas,  443. 
Joya!    V.    Harney,   493. 
JoHlln  V.  CowcK,  178.  299,  317. 
Joyner  v.   Early,  .^84. 
Judd   V.    Eox,   210,  1.'47.  020. 


Judson  V.  Adams,  308.  429. 
Judah  V.  Kemp.  122. 
Jumiska  v.  Andrews.  314,  601. 
June  V.  Payne,  375.  376,  407. 
Just  V.    Porter,   503. 


Kafer    v.    Harlow.    394,    395.    4S2. 

644. 
Kaase  v.  Johnson,  206. 
Kaehler  v.  Dobherphul.  230. 
Karr  v.  Barstow,  43,  551. 
Kahn  v.  Gavit,  399. 
Kahn  v.  Hayes,  192,  252,  284. 
Kamman  v.  Lane,  285. 
Kane  v.  Held,  337,  675. 
Kastl  V.  Arthur,  594. 
Kates  V.  Thomas,  647. 
Katz  V.  Hlavac,  236,  383,  422. 
Katzenberger  v.  Leedom,  302.  317. 
Kaufman  v.  Wessel.  398.  412. 
Kavanaugh  v.  Broadball,  08.  09. 
Kauffmann   v.    Schilling.   153.    174. 

175.  176. 
Keane   v.   Munger,  587. 
Kean  v.  Zundelowltz.  641.  062. 
Keaggy  v.  Hitp.  408.  474.  517. 
Keegan  v.  Cox,  527. 
Keeler  v.  Fassett.  25. 
Keeler  v.  Field.  313. 
Kehoe  v.  Rounds,  541,  050. 
Keenan    v.    Washington    Co..    400. 

403,  410. 
Keep  Co.  v.  .Moore,  122,  344. 
Kehoe  v.   McConaghy,   146.   000. 
Kelm   V.   Velle.   7(t.  .'.89. 
Keiser  v.   Bianlon,  208. 
Keite  v.  Hoyd,  22,  082. 
Kellar  v.  Carr,  399.  412,  413. 
Kelleher  v.  Clark.  322. 
Keller  v.  Boatman.  031. 
Kelly  V.  AltemuH.  4K4.  492. 
Keller  V.  KohinHon.  200.  321. 
Kelly  V.  KeniicMJori',  51.  429. 
Kelly    V.    .M(  Kllibi'ii.    52.    404,    480. 

053 
K'llv    v     l(«l(l.   L'0< 


Ixiv 


TAiiLH  ur  CASES  ciri;i). 


Kellogg  V.  Adams.  57,  (!(i,  528. 

Kellogg  V.  Anderson.  208.  588. 

Kellogg  V.  Burr,  G41. 

Kellogg  V.  Churchill,  239. 

Kellogg  V.  Malifk.  212. 

Kellogg    V.    Olson.    187.    207,    323. 

3-11. 
Kelsey  v.  Griswold.  325.  680. 
Kelsey  v.  Ming,  210. 
Kelso  V.  Saxton,  156. 
Kelso  V.   Youngren.   240. 
Kendall  v.  Fitts.  22,  350.  367,  450. 
Kenley  v.  Commonwealth.  383. 
Kennedy  v.  Brent.  274. 
Kennedy  v.  Roberts.  24. 
Kennedy  v.  Shaw,  G09. 
Kennedy  v.  Strong,  408. 
Kennedy  v.  Whitwell.  468. 
Kennet  v.   Robinson,  331. 
Kennett    v.    Fickel,   492,    536,    575. 

581.  599. 
Kennett  v.  Peters,  571. 
Kentucky  Co.  v.  Crabtree,  371,  413. 

687. 
Kercheval  v.  Harney.  398. 
Kerfoot    v.    State    Bank,    190,    203, 

206,  315. 
Kerley  v.  Hume,  106,  334.  435,  437. 
Kern  v.  Potter,  608. 
Kerr  v.  Drew,  660. 
Kerr  v.  Henderson,  01. 
Kerrigan  v.  Ray,  558. 
Kerrin    v.    Northern    Pacific    Co., 

471.  575,  576,  577. 
Kersenbrock  v.  Martin,  660. 
Kesler  v.  Haynes,  350,  353. 
Kewenaw  Association  v.  O'Xeil.  34. 

172. 
Keyes  v.  Konkel,  26. 
Keyes  v.   McNulty,  388. 
Keyser  v.  Harbeck,  311. 
Keystone    Co.    v.    Kolman,    33.    74, 

479. 
Keystone  v.  Pederson,  228. 
Kidd  V.  Johnson,  324. 
Kidder  v.  Kidder,  167. 
Kiefer  v.  Carrier,  328,  342,  343. 


Kier  v.  Peterson,  94. 

Kilby  V.  Wilson.  297.  304,  311, 

Killey    v.   Scannel,   337. 

Killian  v.  Carrol,  110,  117. 

Kimball  v.  Adams.  612. 

Kimb'll   V.  Cunningham,  308.  309. 

Kimball  v.  Lohmas.  100,  101. 

Kimball  Co.  v.  Rodfield.  572.  654. 

Kimball   v.    Fanuim,   215,   321,  365, 

366,  368. 
Kimball  v.  Tosca.  365,  368. 
Kimball    v.    Thompson.    144,    445, 

6S4. 
Kimball   v.  True.  360,  544. 
Kinil:erly    v.    Patchin,   176. 
Kime  v.  Dale,  344. 
Kimmel  v.  Kint,  370,  382. 
Kinaston   v.    Moor.    155. 
Kincaid  v.  Eaton,  74. 
Kindy   v.   Green.   144. 
King  V.  Blackmore.  6. 
King  V.  Chase,  277. 
King  V.  Cole,  541. 
King  V.  Conevy,  156. 
King  V.    Ford,   232. 
King  V.  Moore.  253,  254. 
King  V.  Orser,  248.  277,  497. 
King  V.  Ramsay.  392,  438,  439. 
Kingman  v.  Reinemer,  237.  240. 
Kingsbury  v.   Buchanan,   105,  604. 
Kingsbury's  Exrs.  v.  Lane's  Exrs., 

21,  38. 
Kingsford  v.  Merry,  311. 
Kingsley  v.  McGrcw,  64,  119,  300. 
Kingsley  v.  Sauer,  378. 
Kinney  v.  Crocker,  259,  265. 
Kinney  v.  Mallory,  365. 
Kinsey  v.  Leggett,  296,  313. 
Kipp  V.  Wiles,  468. 
Kirby  v.   Miller.    105. 
Kirch  V.  Davies,  28.  584,  585. 
Kircher  v.  Schalk,  28,  32.  33. 
Kirk  V.  Nowell.  604. 
Kirkham  v.  Hargraves.  327. 
Kiser  v.   Blanton,   688. 
Kitchen  v.  Vanadar,  291. 
Klee  V.  Grant,  59. 


TABLE  OF  CASES  CITED. 


Ixv 


Kline  v.  Kline.  186. 

Klinkert   v.    Fulton    Co.,    18G.    492. 

685. 
Klinkowstein    v.    Greenberg.    283. 

353. 
Knapp  V.  Colburn.  41,  47.  349.  378. 
Knapp  V.  Smith,  47. 
Kneas  v.   Fitler,  272. 
Kneebone  v.  Kneebcne,  654. 
Knight  V.  Betkwith  Co.,  120.  487. 
Knoche  v.  Peny.  521.  593.  689. 
Knott  V.  People.  432. 
Knott  V.  Sherman,  o62.  407.  408. 
Knowles  v.  Lord,  278.  560. 
Knowles  v.  Pierce,  70.  667.  680. 
Knowlton  v.  Culver,  88. 
Knox  V.  Heliums.  56.  315. 
Koch  V.  Willi.  73. 
Kocher  v.  Palmetier.  159.  584.  601, 

674. 
Koelling  v.  August  Cast  Co..  667. 
Kortright  v.  Com.  Bank,   471. 
Kraemer  v.  Kraemer  Co..  156.  429. 

431. 
Kramer  v.  Mathews.  666. 
Kranert  v.   Simon.  309. 
Krause  v.  Cutting,  627. 
Krauter's  Appeal.  9."5. 
Kreibaum   v.   Yancy,  590.  642. 
Kreger  v.   Osborn.   47. 
Krewson   v.   Purdom.  56.  574,  578. 
Kroskomolski  v.  Paxton.  81. 
Krug  V.  .McGilliard,  570. 
Kunkle  v.   S.ate,   238. 

L. 

Laborde  v.  Rumpa,  466. 

Ijicy  V.  Weaver.  147,  148. 

Ladd   V.   Billings.   151. 

Ladd  V.  North,  127.  135.  527. 

Ladd  V.  Prentice.  372.  .''.74.  434. 

La  Fontaine  v    Orccn.  112. 

Lab  ley   v.   Brady.  683. 

Lak«*  Shore  Co.  v.  Koacli,  L'2!t. 

Lakf-y   v.   H(op8.  689. 

Lamb   v.    Day.   449. 

Lanibdf-n   v.  Conoway.  363,  361* 


Lambert  v.  McFarland.  630. 
Lammers  v.  Meyer.  163.  280. 
Lamont  v.  Williams,  53,  466. 
LaMotte  v.  Wisner.  5.  53.  56.  139. 

597. 
Lamping   v.   Keenan,  324. 
Lamping  v.  Payne,  574. 
Lamy  v.  Remuson,  431,  598,  651. 
Lance  v.  Cowan.  288. 
Lander  v.  Beihtell,  329. 
Lander  v.  Ware.  510.  518. 
Landers    v.   George.   439.    465.   567. 
Landers  v.  Keid,  32. 
Landt  v.  Hilts.  271. 
Lane  v.  Dreger,  216. 
Lane  v.  Foulk,  372. 
Lane  v.  Kohn.  668. 
Langdoc    v.    Parkinson.    358,    371, 

410,  414.  416. 
Langdon  v.  Buel,  184. 
Langdon  v.  Paul,  32.  95.  98,  102. 
Lange  v.  Lewi.  353. 
Lapbam  v.  Osborne.  583. 
La  Place  v.  Aupoix.  340,  342. 
Larkin  v.  Bobbins.  679. 
Larabee  v.  Cook.  356. 
Larson  v.  Chase.  26. 
Larsen  v.   Ditto,  127,  285. 
Larsen  v.  .lohnson.  689, 
Larsen   v.  Nichols,  245. 
Larney  v.  People,  361. 
Latham   v.   Blakeley,    101. 
Lathrop  v.  Blake,  279. 
I.alhrop  V.  Cook.  22.  47.  133. 
Latta  V.  Tutlon,  70.  122,  323. 
Laughlin  v.  Main,  266,  677. 
Laun-ndeau  v    FugeJll,  3ll,  2S8. 
I.,auman  v.  Dcs  MolneB.  224. 
Lavorty   v.   Sncthan.  297.  332. 
LaVb'  v.  CraKl)y.  375.  513.  662. 
Lavlgnr    V,    Runs,    616 
I  awall  V.  La  wall.  535.  595. 
Lawrence  v.  Burnhum.  151. 
I  awrciue  v    ('oaten,  156. 
Lawn-ncc  v.  The  Stale.  115. 
Lawrence  v.  WriRht.  72. 
I  awry   v    KIIIh,  2fi.  69. 


Ixvi 


TA15LK  OF  CASKS  ClTP:iJ. 


Lawson  v.  Lay,  37,  44.  320. 

Lay  V.  Lawson,  502. 

Layman  v.  Hendrix,  047. 

Lazard  v.  Wheeler,  23.  55.  523,  530. 

T^eathman  v.  Doupherty,  282. 

Leadbetter  v.   Kendall.   270. 

Lear  v.  Montross,  250. 

Learned  v.  Bryant.  133.  G78. 

Leavitt  v.  Metcalf.  237,  256. 

Lecky  v.  McDerraott.  292. 

Ledley  v.  Hays.  337. 

Lee  V.  Gould,  333. 

Lee  V.  Hastings.  401,  406,  658.  659. 

Lee  V.  Portwood,  291,  305.  310. 

Lee  V.  Simmons,  120,  299,  317. 

Leek  v.  Chesley,  323,  584. 

Leet  V.  Wadsworth,  70. 

Leete  v.  Bank  of  St.  Louis,  69. 

Legere  v.  Stewart,  655. 

Lehman  v.  Kellerman,  100. 

Lehman    v.    Mayer,    131,    156,    159, 

430. 
Liebman  v.  McGraw,  654. 
Leighton  v.   Brown,   395,   410,   412, 

482. 
Leighton  v.  Harwood,  238. 
LeMott  V.   Hagerman,   145. 
Lentz    V.    Flint    &    Pierre    Co.,    60, 

139. 
Leonard  v.  McGinnis,  280,  467,  635, 

653,  659,   677. 
Leonard  v.  Stacy,  7. 
Leonard  v.  Tidd,  334. 
Leonard  v.  Whitney,  395,  415,  496. 
Le   Roy   v.    East   Sag.   R.    R.,    217, 

218,  225,  226,  247,  320. 
Leroy  v.  McConnell,  556. 
Lesser  v.  Norman,  461. 
Lester  v.  East,  126,  164,  167. 
Lester  v.  McDowell,  105,  166. 
Leven  v.  Smith,  313. 
Levi  V.  Darling,  280. 
Levy  V.  Leatherwood.  640,  660. 
Levy  V.  Lee,   405,  596. 
Levert  v.  Hebert,  580. 
Lewis  v.  Birdseye,  55,  68. 
Lewis  V.  Blair,  278. 


Lewis  V.  Brackenridge,  543. 

Lewis  V.  Buck,  260,  438. 

Lewis  V.  Connolly,  542,  549. 

Lewis  V.  D'Arcy,  202,  212. 

Lewis  V.  Lewis,  626. 

Lewis    V.    Masters,    320,    322,    325, 

335. 
Lewis  V.   Smart,  323. 
Libby  v.  Murray,  84. 
Lightfoot  V.  Jordan,  86. 
Lill  V.  Stookey,  434,  446,  648. 
Lill,  etc.,  V.  Russell,  341. 
Lillard  v.  Whitaker.  468. 
Lillie  V.  Shaw,  57,  76. 
Lillie   V.    McMillan.    597.    641.   655. 
Lilly  V.  Dunbar,  213,  479. 
Linander    v.    Longstaff,    250,    252, 

254. 
Lincoln  Bank  v.  Allen,  24. 
Lincoln  v.  Claflin,  299,  594. 
Lindauer  v.  Teeter,  467,  634,  635, 

639,  642. 
Lindley  v.  Kelley,  147. 
Lindley    v.    Miller,    451,    517,    613. 

618,   619,    620. 
Lindner  v.  Brock,  415. 
Lindon  v.  Hooper,  39,  482. 
Lindsay  v.  Armfield,  274. 
Lindsey  v.  Perry,  38,  131,  132,  153, 

154. 
Lingle  v.  Kitchen,  491. 
Link  v.  Clemmens,  367. 
Linsley  v.  Bushnell,  487. 
Liptrot  V.  Holmes,  68. 
Lisenby  v.  Phelps,  142. 
Lisher  v.  Pierson,  40. 
Litchman  v.  Potter,  161. 
Litterel  v.   St.   John,  320. 
Little  V.  Smith.  604. 
Live  Oak  Co.  v.  Ingham.  641. 
Live   Stock   Gazette   Co.   v.   Union 

Co.,    460. 
Livermore  v.  White,  74. 
Livingston  v.  Bishop,  648. 
Livingston  v.  Moore.  574. 
Livingston  v.  Superior  Ct.,  363. 
Livor  V.  Orser,  184,  257,  497. 


TABLE  OF  CASES  CITED. 


Ixvii 


Lloyd  V.  Brewster.  297,  312. 
Lloyd  v.  Goodwin,  105.  494. 
Lobdell  V.  Stowell,  471. 
Lochnitt  v.  Stockton,  654. 
Lockwood    V.    Bull,    127,    279.    326. 

327. 
Lockwood    V.    Perry.    73,    381,   398, 

423.  425,  426.  C49,  682. 
Loeb  V.  Mann.  787. 
Log   Owners'   Co.    v.    Hubbell,    115, 

322. 
Loeschman    v.    Machin.    186,    294, 

332. 
Logan  V.  Houlditch.  342. 
Loker  v.   Damon,   486. 
Lomme  v.  Sweeney.  393,  399,  402, 

657. 
Lonergan  v.  Stewart.  73. 
Long  V.  Cockrell,  499. 
Long  V.  Gorman.  195.  203. 
Long  V.  Lamkin,  514. 
Long  V.  Spruill,  164. 
Long  Co.  V.  Owens,  194. 
Longerbeam  v.  Huston,  206,  531. 
Loomis  V.   Green.   196. 
Ixiomis   V.  Foster,  604. 
I>oomis  V.  Stave,  474. 
Loomis  V.  Tyler,  35. 
Loomis  V.  Youle,  540,  554.  563,  673. 
Loop  V.  Williams,  604.  609,  625. 
Lorain  Co.  v.  Norfolk  Co.,  29,  214. 
Lord  V.  Bicknell,  349. 
Lorton  v.  Fowler,  197. 
Lothrop  V.  Locke,  532. 
Lougee  v.  Colton,  607. 
Louisville  Co.  v.  Payne.  542,  572. 
Louisville  &  Portland  Canal  Co.  v. 

Holborn.  246.  247. 
Ixive  V.  Hudson,  587. 
Love  v.   People,  363.   366,  598,  680. 
Loveday  v.  Mitchell,  105,  568. 
Lovell  V.  Hammond  Co.,  24. 
Lovejoy  v.  Bright,  365,  398. 
Loveman  v.  Clark,  33,  75,  70. 
Lovf?n  V.   ParRon,  687. 
Ix3V«-Joy  V.  JonfH,  291. 
Ix)vett  V.  Burkhardt,  244,  424,  427. 


Low  V.  Martin,  153,  170,  174. 
Lowden  v.  Goodrick,  482. 
Lowe  V.  Brigham,  435.  436,  440. 
Lowe  V.   Lowry,   643. 
Lowremore  v.  Berry,  567. 
Lowry  v.  Hall.  36,  38,  105,  244,  245, 

289.  422. 
Lucas  V.  Bebee,  82. 
Lucas    V.    Trumbull,    292. 
Luce  V.  Ames,  28. 
Ludden  v.  Buffalo  Co.,  70.  122. 
Ludden    v.    Leavitt.    111.   527,   535, 

557. 
Lufkin  V.  Preston.  67.  69. 
Lugenbeal  v.  Le  Mart.  666. 
Lull  V.  Matthews,  102,  103. 
Lunt  V.  Brown,  112. 
Lupin  V.  Marie,  313. 
Lupton  V.  White.  170,  173. 
Lutes  V.  Alpaugh.  643. 
Luther  v.  Arnold.  350. 
Luthy  V.  Kline,  663. 
Lutz  V.  Yount.  340. 
Lyle  V.  Barker.  496.  498. 
Lynch   v.  Welsh.  179. 
Lynd  v.  Picket.  250. 
Lyon  V.  Receiver.  229. 
Lytle  V.  Crum.  122. 

M. 

Machette  v.  Wanless.  491.  496,  624. 

625.  629. 
MacLachlan  v.  Pease,  453,  535.  65 <. 
Mack  V.  Parkes.  137. 
Macklnley    v.    M'Gregor.    22,    2!»7. 

308.  562.  564. 
Ma(klot  V.  City  of  Davenport.  217, 

225. 
Macon  Co.  v.   Meador,  464.  483. 
Macpherson  v.  Acmo  Co.,  214. 
Macpherson  v.   I  Ionian.  300. 
Madlgan  v.  McCarthy,  89. 
Maddox   v.    Kt-ynoldH.   317. 
MaRcc  V,  .SiKKiTHon.  420 
MagerHtndt   v.   MnrdiT.  407.  416. 
.MoKlll  v.  Caacy.  386. 


Ixviii 


TABLE  OF  CASES  CITED. 


Magrmler  v.  Marshall.  38;"..  391. 

Magiiiii'  V.  Deiismore,  327. 

Mahpw  V.  MatluM-.  315. 

Maids  V,   Watson,  fi43. 

Makom  V.  l.overldge.  298,  309,  311. 

.Mallani  v.  Arden,  G14. 

.Maloiif   V.    Sti.knoy.   \',{\,  592.  597. 

.Malloiy  V.  Willis.  179. 

Maloney  v.  Griffin,  244. 

.Manix  v.  Howard.  t).''>4. 

.Manker  v.  Sine.  209,  376,  658,  685. 

.Mann    v.    Arkansas   Co..    315,    341, 

342,   590,   593. 
Mann  v  Grove,  458. 
Mann  v.   Perkins,  563. 
Manning  v.  Albee.  L98.  305,  308. 
.Manning  v.  Manning,  405,  410,  453. 
Manning  v.  .Mitcherson,  534. 
Manning    v.    Pierce,    388. 
Mansfield  v.  Blackburn,  90. 
Marbury  v.  Madison.  89. 
March  v.  Wright.  396. 
Manhnian   v    Todd.   22,  333. 
.Mardis  v.  Sims.  212. 
Mariany    v.    I.eniaire.    415. 
Marienthal   v.   Shafer,  306. 
Marix  v.  Franke.  406,  644,  645,  648. 
Markham  v.  Jardon,  470. 
.Markham  v.  Middleton,  t!2r.. 
.Marks  v.  Willis.  380. 
.Marriman  v.  Knight.  2S4,  658. 
Marsh  v.  Pier.  149,  563.  564,  673. 
.Marsh  v.  White,  47.  238. 
Marshal  v.  Friend.  156. 
Marshal  v.  Livingstone,  663. 
Marshall   v.   Davis,   42,  44,  46,  111, 

303,  556,  557,  605. 
Marston    v.    Baldwin,    23,    36,    297, 

308,  313,  606. 
Martin  v.  Bayley.  442,  444. 
Martin  v.  Berry,  640. 
Martin  v.  Bolenbau^h,  364. 
Martin  v.  Gilbert,  82,  356. 
Martin  v.  Hill.  180,  292. 
Martin  v.  Hodge.  68. 
Martin  v.  Le  San,  61.  194,  588,  674. 
Martin  v.  Mott,  230,  231. 


Martin  v.  Porter,  179.  180,  477,  507. 

509. 
Martin  v.  Ray.  561,  563. 
Martin  v.  Thomas,  384. 
Martin  v.  Thompson,  35,  75. 
Martin    v.    Watson.    12t;.    280,    556, 

561. 
Martin    v.    Wirtz,   64. 
Maryland    Co.    v.    Dalrymple,    70, 

578. 
Maryville    ijauk    v.    Snyder,    652, 

671. 
Mason   v.   Richards,  383,   441,   454, 

644,  645. 
Mason  v.  Sumner,  397,  446,  .500. 
Massachusetts    Co.    v.    Hayes,    59, 

528. 
Massey  In  Re.  242. 
Masson  v.  Bovet,  308. 
Mathai  v.  Capen,  546. 
Masterson  v.  Pelz,  201. 
Mather   v.    The   Minister  of   Trin- 
ity  Church.  93.  98,   100. 
Mathew   v.   Sherwell,  475. 
Mathews  v.  Carey,  5. 
Mathews  v.   Cowan,   299. 
Mathews  v.  Densmore,  281,  285. 
Mathews  v.  Granger,  674,  67G. 
Matlock  v.   Straughn,  437. 
Matteawan  Co.  v.  Bentley  Co.,  135. 

297.  301.  308. 
Matthews  v.  Coe,  471. 
Matthews  v.  Storms,  368,  388. 
Mattingly  v.  Crowley,  277,  421,  443. 
Mattison  v.  Baucus,  184. 
Mattison  v.  Hooberry,  62. 
Mattoon  v.  Pearce,  395,  464. 
Mattson  v.  Hamich,  574.  639,  655. 
Maund    v.    Monmouth    Canal    Co., 

522. 
Maxham   v.   Day,  43,  89,   137,   272, 

614. 
Maxon  v.  Perrott.  250.  421. 
May   v.   First  National  Bank,  203. 
May  V.   Hoaglan,  168. 
May  V.  Johnson,  395. 
May  V.  Tallman,  67. 


TABLE  OF  CASES  CITED. 


Ixix 


Mayberry  v.   Cliffe.   411.   42S.   456. 

462,  466,  472,  473,  480,   485,  503, 

504. 
Mayer  v.  Columbia  Bank,  531. 
McAfee    v.    Montgomery,    157.    580, 

587,  594,  639. 
McAllister  v.  Lawler.  35,  75. 
McArthur  v.  Carrie's  Admr.,  341. 
McArthur  v.   Hogan.   106. 
McArthur  v.    Howett.   493. 
McArthur  v.  Lane,  145.  455. 
McArthur  v.  Oliver.  51.  146.  358. 
McAvoy    V.    Medina.    115. 
McBrayer  v.  Jordan.  410. 
McBrien  v.   Morrison,  85.  430. 
MrBride    v.    Hicklin.   323. 
McBride  v.  McLaughlin.  511. 
McCabe   v.   Loonsfoot.   689. 
M'Cabe  v.  Morehead,  400,  50G,  510. 

511,  515. 
McCarthy  v.  Hetzner.  192,  202,  337, 

535. 
McCarthy    v.    Ockerman,    54,    157, 

235,  548. 
McCarthy  v.   Strait,  402,  659. 
McCarty  v.  Blevins,  132,  153. 
McCarty  v.  Gage,  279. 
M'Carty  v.  Vickery,  303. 
McClaughry    v.    Crati'.enberg,    217, 

218,   220.   221.   541.   545.   682. 
McClellan  v.  Marshall.  648. 
McClelland  v.  Barnard.  253,  255. 
McClung  V.  Bcrgfeld,  564. 
M'Colgan  v.  Huston.  14. 
McCobb  V.  Christiansen.  256. 
M'Combif  V.  Davies,  118. 
M<f!onnell    v.    Hannah.    600. 
M.ronn*'!!   v.   Klbbe,  458. 
M(rormi(k   v.  Hill.  584. 
M.Cormi(  k  v.  Joseph.  67,  592.  600. 
Mcf'ormlck  v.  McCormick,  85.  130, 

1 :'.?.. 
McCormick  Co.  v.  RIewe,  28. 
Mcrormick    Co.    v.     Finhf-r.     398. 

405. 
McCormick  Co.  v.  Wonlph,  80,  (W.'J. 
McCourt  V.   Bond,  492. 


McCoy  V.  Anderson,  227. 
McCoy  V.  Cadle,  39.  109. 
McCoy  V.  Reck.  554. 
McCraw  v.  Welch,  673. 
McCrisaken  v.  Osweiler,  124. 
McCrory  v.   Hamilton,  447. 
McCue  V.  Tunstead.  253.  658. 
McCurry  v.  Hooper,  563. 
McDaniel  v.  Fox,  498. 
McDaniel   v.   Lipp,   27. 
McDaniel  v.  Sullivan,  582. 
McDermott  v.  Doyle,  369,  394. 
McDerniott  v.   Isbell,  391,  404,  657. 
McDonald   v.   North,  464,  4SS,  515. 
McDonald  v.  Prescott.  286. 
McDowell  V.  Rissell,  170. 
M'Elderry  v.  Flannagan,  142.  U6. 
McElhannon   v.    Farmers'    Alliance 

Co.,  52,  155.  157.  158. 
McElroy  v.  Dice.  613. 
McElvain  v.  Mudd.  502. 
McEvoy  V.  Hussey,  530.  581. 
McFadden  v.  Fritz.  355.  356. 
McFadden  v.  Ross,  402,  666. 
M'Farland  v.  Barker.  606. 
M'Farland  v.  M'Nitt.  371. 
McFerrin  v.  Perry.  21. 
McGary  v.  Barr,  400. 
McGavock  V.  Chamberlain.  43,  455. 

492. 
M'Gee  v.  Given.  272. 
McGee    v.    Overby,    650. 
McGhee  v.  Edwards.  81.  200. 
McGlnley  v.  Werthele.  SL  83.  139. 
McGinn  v.  Worden.  524. 
McGinnis  v.  Hart.  389.  443. 
.McGoon    V.    Ankcny.   523. 
.McGralh   v.   Wilder.  492. 
McfJrcgor   v.   Cole.   341.  534.   655. 
M.  Griff  V.  Rcld.  652.  634.  668. 
McGiilrc  V.  (Jalllgan.  254.  358.  4S1. 
McGulre  v.  Shelby,  567. 
.McGonlglo    V.    Alchlnsoii.    33.    '2<'<x, 

677. 
.M<  Hugh   V.   KobiiiKon.  SO. 
.Mcllvulno   V.    Hulland.   412. 


I XX 


TAHLF,  OF  CASKS  Crn::D. 


Mcllvaine's  Adnir.  v.  Holland,  444, 

Mclntire    v.     Eastiuaii,     i'SJ,     585, 

587. 
.Mcintosh  V.  rnrker,  77. 
Mlntyre  v.  Carver.  118. 
Mclsaars  v.  Hobbs.  105,  185. 
McKay  v.  natchellor.  230. 
.M(  Kfal  V.  Freeman,  390,  443. 
McKean    v.    Cutler,    22,    450,    505, 

r,5I,  053. 
McKean  v.  Mathews  Co.,  78. 
McKelvey  v.  Creevey,  32. 
McKee  v.  Judd,  523. 
McKee  v.  Mehan,  2G6. 
McKennon  v.  May,  193,  674. 
McKey  v.  Lauflin,  400. 
McKinnis  v.  Little  Rook  Co.,  178, 

.T15. 
MiKinnon  v.  Meston,  33. 
M<Klnstry  v.  Collins,  283,  361. 
McKin/ie  v.  Bait.  &  Ohio  R.  R.  22, 

53.  6G5. 
McKnight  v.  Dunlop,  609. 
McKnight  v.  Morgan,  304,  310. 
McLachlan  v.  Pease,  453,  535. 
McLarren    v.    Thompson,    451,   540, 

647. 
McLaughlin  v.  Piatti.  107,  108,  150. 
M'Laughlin   v.  Waite,  115,  117. 
McLean  v.  Cook,  271. 
McLean  Coal  Co.  v.  Long,  507. 
McLennan  v.  Livingston,   159. 
McLeod  V.  Johnson,  138,  577. 
M'Leod    V.    M'Ghie,   475. 
McLeod  V.  Gates,  234. 
McLeod  Co.  v.  Craig,  187,  404,  411, 

412.  414,  573. 
McMillen   v.    Anderson,   219. 
McManus    v.    Donohoe,     409,     431, 

592. 
McManus  v.  Walters,  64.  65.  549. 
McMeekin  v.  Worcester,  403. 
McMillan  v.  Dana,  82. 
McMillan  v.  Larned,  209.  532,  684. 
McMorris  v.  Simpson,  293. 
McXail   V.   Ziegler,   312. 


McXally  V.  Connolly,  32. 

McNamara  v.  Eisenleff,  644. 

McNamara  v.  I. yon,  339,  574,  639. 

McNeal   v.   Rider.   187. 

McNeal   v.    Leonard,   442,   673. 

McNeely  v.  Hunton,  47. 

McNeill  v.  Arnold.  72.  i2,  336. 

McPheloniy  v.  Solomon,  220. 

McPherren  v.  Homan.  300. 

McPherson  v.  Acme  Co..  214. 

McPherson  v.  Melhinch.  540,  606. 
616.  618.  619. 

McRae  v.  Kansas  City  Co..  356. 

McRae  v.  Central  Bank.  30. 

M'Rea  v.  M'Lean,  381.  398,  426. 

McTaggart  v.  Rose,  561. 

McTeer   v.    Briscoe.    407. 

McVey   v.   Burns.   410,  453. 

Mead  v.  Kilday,  106. 

Meads  v.  Lasar,  658,  659. 

Meagher  v.  Hayes,  28. 

Meany  v.  Head,  23. 

Mears  v.  Waples,  311. 

Meeker  v.  Chicago  Cast  Steel  Co., 
478. 

Megee  v.  Beirne,  247. 

Meeker   v.   Johnson,   640,    658. 

Melcher  v.  Lamprey.  239. 

Meixell  v.  Kirkpatrick,  379,  467, 
474,   578,  635,   662. 

Meldrum  v.  Snow,  313. 

Mellen  v.  Baldwin,  632. 

Mellor  v.  Spateman.  458. 

Melton  V.  McDonald.  112. 

Melvin  v.  Robinson,  265,  268. 

Melvin  v.  Winslow,  395,  501. 

Mendelsohn  v.  Smith,  21,  39. 

Menkens  v.  Menkens,  474. 

Mennie  v.  Blake,  38,  39,  40,  41,  42. 
45,  423. 

Mercer  v.  James,  131,  643. 

Merchants'  Bank  v.  Mann,  186. 

Merchants'  Co.  v.  Kentucky  Co., 
492.  583. 

Merchants'  S.  L.  &  T.  Co.  v.  Good- 
rich.  88.   466. 

Meredith   v.   Kennard,   r39. 


TABLE  OF  CASES  CITED. 


Ixxi 


Meredith  v.   Knott.  105. 

Meriden  v.  Wheldon,  131. 

Merrell   v.   Springer,   25,  316. 

Merrill  v.  Butler,  466.  644. 

Merrill  v.  Denton.  196,  209.  322, 
600. 

Merrill  v.  Equitable  Co.,  159,  579. 

Merrill  v.  Wedgewood,  575. 

Merrill  Co.  v.  Nickells,  301,  463, 
468.  657. 

Merritt  v.  Lumbert,  682. 

Merritt  v.  Miller.  238. 

Merritt  v.  Robinson.  298. 

Merritt  v.  Thompson,  679. 

Mersereau  v.   Norton.   151. 

Meshke  v.  Van  Doren.  463.  497. 

Messer  v.  Baily.  22,  278,  452. 

Mexal   V.    Dearborn,   121. 

Meyer  v.  First  National  Bank,  56, 
676. 

Meyer  v.  Lane,  549. 

Meyer  v.  Mosler,  684. 

Meyer  v.  Warner,  527.  532. 

Meyers  v.  Bloom,  300,  314,  411. 

Meyers  v.  Schemp,  89. 

Miami  Co.  v.  Port  Royal  Co.,  122. 

Mil  haeles  v.  Towne,  536. 

Mickles  v.  Tousley.   257. 

Middlebrook  v.  Corwin,  95. 

Middleton  v.  Bryan,  481,  501. 

Mikeslll  V.  Chaney.  434,  433,  441, 
452. 

Mllburn  v.  Bearh,  493. 

Miles  V.  Walther,  660,  666. 

Miller  V.  Adamson,  324,  570,  660. 

Miller  V.  Adsit,  105.  128,  557. 

Miller  V.  Baker.  277,  333. 

Miller  V.  Bryan,  22,  246. 

Miller  v.   Bryden.  598.   633,  662. 

Miller  V.  Cheney.  267.  416. 

Miller  V.  CommlsBloners  of  Mont- 
gomery  Co..    389. 

Miller  V.  Eatman,  145. 

Miller  V.  Foutz,  382.  393. 

Miller  V.  FretH,  624. 

Miller  V.  OarlliiK.  r,\:,. 

MiiifT  V.  f;:ii)!»'.  ^'>^,,  :,7i. 


Miller  v.  Hudson.  239. 

Miller  v.  111.  Cent.  R.  R.  Co.,  133. 

Miller    v.    Jones*    Admr.,    76,    112, 

492,   557,  566,   600. 
Miller  v.  Langdon,  682. 
Miller  v.  LePiere,  66. 
Miller  v.  McGehee,  229. 
Miller  v.  Moses,  277,  421,  436. 
Miller  v.  Sleeper,  45,  603. 
Miller  v.  Warden,  53,  55,  77,  430. 

661. 
Miller  v.  White,  422. 
Miller  v.  Wilson,  80. 
Miller  v.  Whitson,  193,  465,  468. 
Millett  V.  Hayford,  393. 
Milligan  v.    Brooklyn   Co.  54.   315. 

323,  572,   577. 
Milliken    v.    Selye,    235.    244.    274. 

350,  422,  540,  541.  542. 
Millot  V.  Conrad.  123. 
Mills    V.    Gleason.    382,    437.    438, 

446,  506. 
Mills   V.    Glover,    37. 
Mills  V.  Malott.  142. 
MilLs  V.  Martin,  240. 
Mills  V.  Pryor.  250. 
Mills  V.  Redick,  89,  96. 
Milton  V.  Bragdon,  525. 
Milnor  Co.  v.  De  Roach.  327. 
Milwaukee  R.  R.  v.  Finney.  513. 
Minrhrod  v.  Wlndoes.  155,  543. 
Mine  La  Motte  Co.  v.  White.  33. 
Minneapolis  Co.  v.  Darnall,  582. 
Mires  v.  Solehay.  135.  346. 
Mitchell  V.  Alostree.  440. 
Mitchell  V.   Bloom,  415. 
Mit<hell  V.  Burch,  22.  510.  515. 
Mitchell   V.   Eure,  533. 
Mitchell   V.  Franklin,  fill. 
Mitihell    V.    iiiiunaii,    4"',    115.   128. 

557. 
Mitchfll   V.    Ingram,   381. 
Mitchell   V.   M<Leod,  70.  :,:\:,. 
Mitchell    V.    Roberts.    43.    47.    111. 

134.   135.  fiO.'i. 
Mllchell   V.   SiniH,   237.  59X 
Mltch.-l!  V,  WllliamH.  328.  3I-.  :;»•. 


Ixxii 


TABLE  OF  CASKS  CITED. 


Mitchell  V.  Worden,  309. 
Mitchum  v.  Stanton.  382,  383. 
Mittenthal  v.  Helgel,  172. 
.Mittnacht  v.  Kellerman.  404. 
Mix  V.   Kepner.  4t;3.   487.   C33,   640, 

642. 
Mobley  v.  Letts.  185. 
.Mohn  V.  Stoner.  168. 
Mohr    V.    Langan.    236,    204.    299. 

314,    422,   r.3G,    671. 
Monday  v.  Vance,  193,  587,  661. 
Monness  v.  Livingstone,  378. 
Montgomery  v.  Keppel,  189. 
Monty  V.  Arneson,  242. 
Moody  V.  Keeny.  25. 
Moody  V.  Whitney.  181. 
Moore  v.  Bowmaker.  370,  385,  394, 

404.   679. 
Moore  v.  Brady,  205,  532. 
Moore  v.  Combs.  33. 
Moore    v.    Cunningham,    28. 
Moore  v.  Devol,  623. 
Moore  v.  Erie  R.  R.  Co.,  74. 
Moore   v.   Herron,    267. 
Moore  v.  Hitchcock,  118. 
Moore  v.  Kepner,  131.  462. 
Moore  v.  Lewis,  367,  429. 
Moore  v.  McKibbin.  293. 
Moore  v.  Moore.  49. 
Moore  v.  Ray.  320. 
Moore  v.   Sample,  151. 
Moore  v.  Schultz,  485. 
Moore  v.  Shaw.  195.  200,  592,  661. 
Moore  v.  Shenk,  456. 
Moore  v.  Watson,  299,  532. 
Moore  v.  Watts,  14. 
Moore  v.  Westervelt.  275. 
Moore  v.  Wood,  507. 
Moorman    v.    Quick.    56,    112,    529, 

557. 
Moors  V.  Parker,  388.  393. 
Moran  v.  Abbott,  214. 
Moran   v.    Sturges,   269. 
More  V.  Clypsam.  155. 
More  V.   Finger,  23,   298,  301,  316, 

573.  601. 
Morehead  v.  Yeasel,  400. 


Morey  v.  McGuire,  102,  103, 

Morford  v.  Unger,  226. 

Morgan    v.   Bradley.   523. 

Morgan  v.  Congdon,  118. 

Morgan  v.  Craig,  234. 

Morgan  v.  Evans,  271. 

Morgan    v.    Gregg,    173.    174.    470, 
471. 

Morgan  v.  Griffiths,  371. 

Morgan  v.  .Jackson.  587.  588.  674. 

Morgan  v.  .Jaudon.  471. 

Morgan  v.  Morgan.  544. 

Morgan   v.  Powell.  507.  509. 

Morgan  v.  Reynolds.  22.  491. 

Morgner  v.  Biggs,  111. 

Morrill  v.  Daniel,  357. 

Morris  v.   Baker,  351.   497. 

Morris  v.  Bank  of  Attalla.  195. 

Morris  v.  Cannon,  89. 

Morris   v.   Coburn,  586,   653. 
Morris  v.  Danielson,  112,  113,  564. 

Morris  v.  De  Witt,  239,  244. 
Morris  v.  Lowe,  295,  680. 
Morris  v.  Mathews,  373. 
Morris   v.    Pugh,   326,   339. 
Morris  v.  Van  Voast.  127,  351. 
Morrison  v.  Austin.  640.  645. 
Morrison   v.   Blodgett,   151. 
Morrison  v.  Dingley,  168. 
Morrison  v.  Lumbard.  82,  83. 
Morrison  v.  Yancey,  405. 
Morrow  v.  Shepherd,  384. 
Morse  v.   Hodsdon,  391. 
Morse   v.    Pike,    159. 
Morse   v.    Reed,    119. 
Morss  V.  Stone,  439,  565. 
Morton  v.  Preston,  316.  527. 
Morton  v.  Sweetser,  640. 
Morton   v.   Williams,   187. 
Moser  v.  Jenkins,  51.  573. 
Moses  v.  Morris.  85. 
Mosher  v.  Vehue.  32. 
Moseley  v.  Andrews,   250. 
MouUon  V.  Bird,  437.  605. 
Moulton  V.  Jose,  276. 
Moulton  V.  Norton,  277. 
Moulton   V.    Smith,   626. 


TABLE  OF  CASES  CITED. 


Ixxiii 


Mount  V.  Derick,  135,  341,  346. 
Mt.   Carbon   Coal    Co.   v.    Andrews, 

219,   221,   225.   227,   280.  545,   560, 

562,  606. 
Mowrey  v.  Walsh,  304,  309. 
Muck  V.  Folkroad,  555, 
Muggridge    v.    Eveleth,    105,    111. 

112. 
Mulheisen  v.  Lane.  121,  127. 
Mulholm   V.   Cheney.   234,  237. 
Mullen  V.   Xoonan.   575. 
Muller  V.  Plue,  281.  282,  547. 
Muller  V.  Purcel,  636. 
Munns  v.  Loveland,  285. 
Munroe  v.  Stickney,  458. 
Murdoch  v.  Will,  360,  544. 
Murphey  v.  Virgin,  582. 
Murphy  v.  Bennett,  632. 
Murphy  v.  Stewart,  642. 
Murphy  v.  Tindall,  49. 
Murray  v.  Burling.  25. 
Murray  v.  Lease,  85. 
Murray  v.  Norwood,  24,  84. 
Murray  v.   Pennington,  584. 
Mu?prat  V.  Gregory,  618. 
Myar  v.  El  Paso  Co.,  680. 
Myer  v.  Hearst,  281,  282. 
Myers  v.  Clark,  348. 
Myers  v.  Credle,  80,  131. 
Myers  V.  Dixon,  404,  406,  413,  414, 

665. 
Myers   v.   Lingenfelter,   534. 
Myers  v.  Mayfield,  617. 
Myers  v.  Moulton,  142,  656. 
Myers  v.   Van  Norman,  588. 
.Myers   v.   Yaple,   214,   570. 
.Myrick  v.  Bill,  26.  324. 
Myrick  v.  National  Co.,  80. 


N. 


Nafe  V.    Leiter.    232. 
Nash  V.  Farrlnton.  251,  253. 
Nalor    V.    Colllnge,    90. 
Na«h  V.   FredorickB.  523. 
NaHh   V.  MoHher.  46.  291,  295,  303. 
309. 


Nashville    Ins.    Co.    v.    Alexander, 

277,  421,  551,  628. 
National    Bank,  Cairo,   v.   Crocker, 

168. 
Nat.  Bank,  G.  Bay,  v.  Dearborn,  fj. 

167. 
National  Bank  v.  Feeney,  431.  .")S2. 

660. 
National  Bank  v.  Rogers,  69.  316, 

669. 
National  Bank  v.  Schufeldt,  206. 
National    Bank   v.   Teat,    202. 
National  Bank  v.  Walbridge,  63. 
National  Co.  v.  Kaplan,  548. 
National  Co.  v.  Sheahan,  533,  584. 
Neal  V.  Cone,  213. 
Neal  V.  Williams,  309. 
Nebeker   v.    Harvey,    65,   573,    675, 

677,    680. 
Neeb  v.  McMillan,  77. 
Neely  v.  Lyon,  47. 
Neff  v.  Thompson,  44.  48,  49.  111. 

291,  333. 
Neiler   v.   Kelley,  2.j,   155. 
Neis  V.  Gillen.  456,  503. 
Neiswanger   v.    Squire,   32. 
Nellis  V.  Bradley,  308. 
Nelson  v.  Bowen,  633,  635. 
Nelson  v.  Graff,  178,  315. 
Nelson  v.  Iverson,  330. 
Nelson  v.  Mclntyre.  106.  592. 
Nesbitt    v.    St.    Pa\il    Lumber   Co.. 

172.   290.   479. 
Nettleton  v.  Jackson,  120.  687. 
Newberry  v.  Gibson,  492,  529,  662. 
Newcomer  v.   Alexander,  255. 
Newell    v.    Hayden,   250,    255. 
Newell    V.    Newell,   22,   49,    66,    67. 

323,  340.  540,  541,  552,  553. 
Newkirk   v.  Dalton,  289. 
New  England  Co.  v.  Bryant .  4'it;. 
Ncwland  v.  Willitts,  366. 
•Nc'wman   v.   Mean.   151. 
Newman   v.   Bennett,  342.  343.  525. 
Newman  v.  Jc-nne,  43,  334. 
Newman   v.  Newman.  370. 
Newman    v.   TymcHon.    185. 


ixxiv 


TABLK  Ul"  CASES  t  irKI). 


Newton  v.  Brown.  284. 

Newton  v.  Gardner,  149.  520. 

Newton  v.  Round.  53G. 

X.  Y.  Guarantee  Co.,  v.  Flynn.  404. 

Niagara    Elev.    Co.    v.    McNaniara, 

2111.    490. 
Nihlilet  V.  Smith,  88. 
Nicholas  v.  Chapman.  332. 
Nicholas  Ins.  Co.  v.  Alexander.  4oG. 
Nichols  V.  Cowles,  541. 
Nichols  V.  Dewey.  94. 
Nichols  V.  Dodson  Co.,  589. 
Nichols  V.  Dusenbury,  617,  G19. 
Nichols  V.  Gage.  293. 
Nichols  V.  Knutson,  653. 
Nichols    V.    Michael,    86,    131,    136. 
Nichols  V.  Nelson.  655. 
Nichols  V.  Nichols,  555.  558. 
Nichols  V.  Paulson.  367,  377. 
Nichols  V.  Pinner.  297,  307,  309. 
Nichols  V.  Potts.  27,  30,  315. 
Nichols  V.  Sheldon  Bank.  339. 
Nichols  Co.  V.  First  National  Bank 

59. 
Nil  hoi  son  v.  Dyer,  602. 
Nicholson   v.   Hancock,   37. 
Nicholson  v.  Karpe,  205. 
Nicholson  v.  Mitchell,  236. 
Nickerson  v.  California  Co..  664. 
Nickerson  v.  Chatterton,  355.  357, 

380.  382.  384,  390.   443,   644,  645, 

647. 
Nickerson  v.  Stage  Co..  640. 
Nigh  V.  Dovel,  688. 
Nightingale  v.  Scannell.  498,  516. 
Nimocks  v.  Pope,  401,  402. 
Nipp  V.  Bower.  431.  683. 
Nisbet  V.  Pation.  342. 
Niven  v.  Burke,  209. 
Noble  V.  Adams,  298. 
Noble    V.    Epperly,    105,    142.    434. 

467,  563,  565,  567,  604,  625. 
Noble    V.    Worthy,    299,    536,    595, 

632. 
Nodle  V.  Hawthorn.  138,  599. 
Noe  V.  Gibson.  238. 
Nolan  V.  Serine,  662. 


Nolty  V.  The  State,  163. 
Norcross   v.   Baldwin,   571. 
Norcross  v.  Nunan,  281,  639. 
Norman  Co.  v.  Ford,  80,  321,  322, 

593,  600. 
Norris    v.     Clinkscales,     459,    535, 

639. 
Norris   v.   Vosburg,   194. 
North  V.  Turner,  523. 
Northampton  Paper  Mills  v.  Ames, 

102. 
Northrup  v.  McGill,  508. 
Northern  Co.  v.  Sellick,  327. 
Northrop  v.  Trask,  29. 
Northwall  Co.  v.   McCormick,  661. 
Northwall  Co.  v.  Strong,  674. 
Northwestern  Co.  v.  Scott,  229. 
North  Star  Co.  v.  Rlnkey,  598. 
Norton    v.    The    People,    279,    527, 

557. 
Norton  v.  Williamson,  198. 
Nowlen  v.  Colt,  174. 
Noxon  V.  Hill,  497,  498,  516. 
Noyes  v.  Belding,  254. 
Noyes  v.   Haverhill,   222. 
Nuckolls   V.   Pence.  194. 
Nunan  v.  San  Francisco,  553. 
Nunn    V.    Bird.   211.   583,   585,   586, 

638.   676. 
Nunn  V.  Goodlett,  350,  358,  359,  363, 

368,  388,  389,  391. 
Nye  V.  Weiss,  82,  356. 


O. 


Oaks  V.  Wyatt,  607. 
Norwood  V.  Interstate  Bank,  410. 
Noville   V.   Daw,  657.   687. 
O'Brien  v.  Haynes,  421. 
O'Brien  v.  Hilburn,  566. 
O'Brien  v.  Palmer,  623. 
O'Connel  v.  Jacobs,  338,  346. 
O'Connor  v.  Union  Line,  279,  287, 

562. 
O'Connor  v.  Blake.  442.  569. 
O'Connor  v.  Gidday,  84. 
O'Donnell  v.  Colby,  407.  657. 


TABLE  OF  CASKS  C  ITED. 


Ixxv 


O'Donnell  v.   Segar,  255. 
O'Donnell  v.  Slack,  26. 
Odell  V.  Hole.  396,  462,  493. 
OTarrell  v.  IMcClure,  60,  639. 
Ocala  Co.  v.   Lester,  123,  4S3,  491, 

492. 
Odd   Fellows   Assn.    v.   McAllister, 

56,  527. 
Offutt  V.  Flagg,  186.  292. 
Ogden  V.  Stock,  28.  94. 
Ogden  V.  Warren,  323. 
O'Grady  v.  Keyes.  351.  352,  386. 
Ohio   &   Miss.   R.   R.   Co.   v.    Kerr, 

309. 
O'Keefe  v.  Kellogg.  623.  624.  647. 
Olds  V.  Andrews.  209,  283. 
Oleson  V.  Merrill,  48.  320.  325,  541, 

559. 
Oliver  v.  Townsend,  387. 
Oliver  v.  Wooley,  159. 
Oliver  Plow  Works  v.  Dolan,  213. 
Olin  V.  Lockwood,  654. 
Olmstead  v.  Hotailing,  297,  303. 
Olson  v.  Peabody,  651.  668. 
Olson  V.  Thompson.  23. 
Ombony  v.  Jones.  89. 
O'Neal  V.  Wade.  393,  506. 
O'Neill   V    Bailey,   337. 
O'Neill  V.  Henderson,  336. 
Onstatt  V.  Ream,  154,  156. 
O'Reilly  v.  Good,  219,  221. 
Oppenheimer  v.  Lewis,  655. 
Ormand  v.  Brierly,  373. 
Ormsbee  v.  Davis.  397. 
Ormsby    v.    Nolan,    206.    375.    660. 

661. 
Ormsby    v.    Vermont    Copper    Co.. 

464.  468. 
Orner  v.  Hollman,  239. 
Orr  V.  B'.nk  United  States.  522. 
OHborn   v.   niackbiirn.  400. 
Osborne    v.    Banks,    H\. 
Osgood  V.  Green,  23,  619. 
Osgood   V.   McConnell.   623. 
OHkaloo8a   Works    v.    Nelson,    380, 

663. 
O.kanip  V.  K rites.  27,  30,  215,  668. 


Osterhout  v.  Roberts.  648. 

Oswego  Co.  v.  Lendrum,  323. 

Otis  v.  May,  31. 

Otis  V.  Jones.  514. 

Otis  V.  Sill,  138,  145.  152. 

Otis  V.  Williams,  249. 

Otter  V.  Williams,  468,  515.  517. 

Ottumwa  Bank  v.  Tottem,  70,  186. 

187,  209.  674. 
Only  V.   Dickinson,  643.  647. 
Ousley  V.  Hardin,  513. 
Outhouse  V.  Allen.  285. 
Overfield  v.   Burlitt.  43. 
Overman  v.  Sasser.  33. 
Oviatt  V.  Pond.  464,  485. 
Owen  V.  Boyle.  47.  612. 
Owen  V.   Gooch.  135. 
Owen  V.   Nail.   352. 
Owings  V.  Owings.  145. 
Oxley  V.  Cowperthwaite,  348. 

P. 

Pabst  Co.  V.  Butchhart.  654. 
Pace  V.  Neal.  210,  412,  413. 
Pace  V.  Pierce,  43. 
Pacey  v.  Powell,  57,  591. 
Pacific    Ins.    Co.    v.    Ccnard.    462. 

465.   485.   486,   514. 
Packard  v.  Getman.  10."),  3.7. 
Page  V.  Crosby,  343,  346. 
Page  v.  Fowler,  29,  75.  98,  99.  100. 

472. 
Page  v.  Robinson,  ?A. 
Paget's  Case.  94. 
Paige  V.  Smith.  2:;s. 
Pain  v.  Whittakcr.   107. 
Painter    v.    Hall.   594. 
Pallcn   v.   Bogy.  56.   122.   124. 
r'aim  V.  Ohio  &  Miss.  R.  R.  Co.  485. 
Palmer  v.  Corwith.  222. 
Palmer  v.  Rmery.  408,  t;t;7. 
Pangbiirn    v.    Patrldgf.    22.   40.   4  2. 

111.  n:;,  6o5. 

Pupiiieau   v.   Went  worth.   122 
Pardee   v.   RoluMt.son.  "IS. 
Parliam  v.  UlU-y.  3'-.  HI,  2S8.  289. 
452.  6.-,3. 


Ixxvi 


TABLE  OF  CASES  CITED. 


Park   V.    McDaniels,   482,   486,   553. 
Parker  v.   Browning,   238.  239. 
Parker  v.  Garrison,  148,  174. 
ParkPr  v.  Hall,  352,  357,  368. 
Parker  v.    Lombard,  329. 
Parker  v.  .Mellor.  444.  5G3,  565. 
Parker  v.  Oxenrline.  377.  408. 
Parker  v.  Palmer,  193.  428,  431. 
Parker  v.  Patriek.  312. 
Parker  v.  Simonds,   374,  377,  385, 

395,  435,  481. 
Parker  v.  Storts.  101. 
Parker  v.  Youn?r.  403.  530. 
Park  V.  Robinson,  192.  310. 
Park   V.    McDaniels.   332. 
Parkhurst  v.  Sharp.  196. 
Parks  V.  Barkham,  550,  681. 
Par! in  v.   Austin,  353,  354.  609. 
Parmalee  v.  T.oomis,  43.  648. 
Paroski   v.   Goldberg,   193. 
Parrish  v.  Thurston.  298.  594. 
Parrott  v.  Scott,  362,  364.  400.  402. 
Parsley  v.  Huston.  280.  561,  567. 
Parsons  v.  Boyd.  Ill,  144,  191. 
Parsons  v.   Dickinson,  524. 
Parsons  v.  Harper,  487. 
Parsons  v.  Martin,  468. 
Parsons  v.  Webb.  294,   320. 
Parsoris  v.  Williams.  373. 
Partridge  v.  Philbrick,  214.  344. 
Partridge  v.   Swazey.  320. 
Patapsco  Co.  v.  Magee,  188. 
Patchen  v.  Wilson,  521. 
Patchin   v.    Pierce,   184. 
Patterson  v.  Fowler,  113. 
Patterson  v.  Irwin,  194. 
Patterson   v.   Seaton.   235. 
Patterson  v.  Snow,  54. 
Patterson    v.    United    States,    623, 

624,   625. 
Pattison    v.    Adams,    22,    105,    554, 

555,  556. 
Patton  V.  Hamner,  561. 
Paul    V.    Hodges,   547. 
Paul  V.  Luttrell,  22,  23,  36.  48,  131, 

326.  330,  552,  556,  606,  607. 
Paul  V.  Reed,  65. 


Pauls  V.  Mundine,  379. 

Paulson  V.  Nichols  Co..  665. 

Paxton  V    l.farn,  547,  571. 

Payne  v.  Bruton,  306.  541.  542.  544. 

Payne  v.  Drewe.  275. 

Payne  v.  I<]lliott,  25.  571. 

Payne  v.  .lune,  213.  215,  321,  569. 

580. 
Payne  v.  McCormick,  186,  571,  575, 

576. 
Peacock  v.  Haney.  110,  412. 
Pearce  v.   Humphreys.  348. 
Pearce   v.   Twichell,   456,   521,   647. 
Pearl  v.  Garlock,  51.  406,  666. 
Pearson    v.   Graham,    334. 
Pearsons  v.  Eaton,  632. 
Peas  V.  Ditto,  529. 
Peck  V.  Brewer,  517. 
Peck  V.  Jenness,  410. 
Peck  V.  Wilson,  374,  378,  388,  393. 
Peckinbaugh    v.   Quillan.   207.    209, 

597. 
Peepless  v.  Warren,  593,  675. 
Peerless  Co.  v.  Gates,  492.  593. 
Pierce  v.  Hill,  22,  36,  37,  241,  270. 
Pekin  Co.  v.  Wilson.  302,  570,  585. 
Pemble  v.  Clifford.  378. 
Penfield  v.  Rich.  520. 
Peninsula    Co.    v.    Ellis,    300,    317, 

635. 
Penn   v.   Brasher,  80. 
Penny  v.  Little,  611. 
Penny  v.  Miller.  204. 
Pennybecker   v.    McDougal,    506. 
Pennybecker  v.   McDougal,   89,   96, 

100. 
Penrose  v.  Green,  643. 
Penton  v.  Hensen,  532.  668. 
People  V.  Albany  Com.  Pleas,  217. 

219,  221. 
People  V.  Brown,  277. 
People  V.  Core.  273,  360,  544. 
People  V.   McGarren,   115. 
People  ex  rel.   etc.   v.  N.   Y.   Com. 

Pleas,  444. 
People  V.  Neill.  432. 
People  V.  Niagara  C.  P.,  457,  606. 


TABLE  OF  CASES  CITED. 


IXXVll 


People  V.  Robinson,  361. 

People  V.  Schuyler,  277. 

People  V.  Supervisors  of  Chenango, 

224. 
People  V.  Tioga  C.  P.,  541. 
People  V.  Tripp,  645. 
People  V.   Wiltshire,    429. 
People's  Bank  v.  Jones,  74. 
Perigo,  etc.   v.  Grimes,  679. 
Perkins  v.  Anderson,  299,  314. 
Perkins  v.  B"rnes.  326,  340. 
Perkins  v.  Best,  193,  322. 
Perkins  v.  Rudolph,   679. 
Perkins  v.  Smith,  541,  543.  550. 
Perkins  v.  Thornburgh.  250. 
Perley    v.    Balch.   308. 
Perley  v.  Foster,  105.  Ill,  115,  277. 
Perreau    v.    Bevan,    349,    369,    371, 

388,   499. 
Perry  v.  Lewis,  643. 
Perry   v.    Richardson,   239. 
Perry  v.  Williams.   294. 
Perry  Co.  Bank  v.  Rankin,  55,  203, 

571. 
Perry  Co.  v.  Barto.  204. 
Persels  v.  McConnell,  127. 
Persse    v.    Watrous.    12.    363,    369, 

370,  372,  373,  377.  540. 
Peters  v.  Parsons,  204,  324. 
Peterson  v.   Fowler,  156,  159,  546. 
Peterson  v.  Haight,  517. 
Peterson  v.  Lodwick,  69. 
Petre  v.  Duke,  49,  466,  552. 
Petrie  v.  Fisher,  358.  359,  405. 
Pettengill  v.  Merrill.  165. 
Pettingill   V.   Rideout.   289. 
Pettit  V.  Addington,  482. 
Pettygrove    v.    Hoyt.    39.    369,    382, 

505. 
Pf'Vton   V.  Robertson,  22. 
Phelan  V.  Bonham.  IIS. 
Phelps  V    Owens,  516,  517. 
Phenix  V.  Clark,  458,  459,  519.  541, 

545.   681. 
Philips  V    HarrlHH,   21.   4.'!.  44,   2:i4. 

246,   441. 


Philleo  V    McDonald,  53,  358,  638, 

658. 
Phillip  V.  Pierce.  371. 
Phillips  V.  Gastrell,  75,  76. 
Phillips  V.  Hall,  44,  128,  333,  484. 
Phillips  V.  Monges,  517. 
Phillips  V.  Spotts,  283. 
Phillips  V.  Tooper,  414. 
Philman  v.  Marshal,  407. 
Philpot  V.  Kelly,  330. 
Philpott  V.  Dobbinson,  617. 
Phipps  V.  Boyd,  679. 
Phipps    V.    Taylor,    142,    639,    668, 

686. 
Phipps  V.  Wilson,  582. 
Phoeni.x  Co.  v.  Anderson,  268. 
Phoenix  Iron  Works  v.  McEvony, 

298,  301,  570. 
Piazzek  v.  White.  143. 
Pickard  v.  Low,  186. 
Pickens  v.  Oliver,  457.  558. 
Pickering  v.  Busk,  293. 
Pickering  v.  Pickering.  145. 
Pickett  V.  Bridges,  630,  631,  646. 
Pico  V.  Pico,  283.  574,  585,  637,  656. 
Pico  V.  Martinez,  494. 
Pierce  v.  Batten,  189,  203,  532. 
Pierce  v.  Benjamin,  468,  609. 
Pierce  v.  Hill,  23. 
Pierre  v.  Gilson,  25. 
Pierce  v.  King,  404. 
Pierce  v.  Stevens,  105.  112. 
Pierce  v.   Van   Dyke,  48,  320,  325. 

340,  437,  455,  456,  541. 
Piersp   V.    Miles,   365. 
PIgafs  Case,  370. 
Pike  v.  Colvin,  193,  207,  28(». 
Pike  v.  Gandall.  616. 
Pllger  v.   Marder.  399.  664.  i;68. 
I'ilklngton  v.  Trigg.  Ifil.. 
Pllsbury  V.  Webb,  292,  322. 
PInckney   v.    Darling,   62,   298. 
PIngree  v.  Siecre,  156. 
IMiikcrtoii   V.    Bromley,  31  I. 
PiriliiTlou   V.   Railroad,  472. 
Piper   V.    .Martin.  93. 
PIplier  V.  JohnHon,  399. 


Ixxviu 


TABLE  OF  CASES  CITED. 


rirani  v.  Barden,  44,  351,  353,  540. 

IMrkins   v.   Rudolph.  384,   385,  394. 

Pitman  v.  Baumstaik,  143. 

Pitt  V.  Owens,  313. 

Pittsburg   Bank    v.    Hall.   3G9,   371, 

370,  417. 
Pitts    Works    v.    Young,    575,    587, 

635. 
Place  V.  Sawtel,  31. 
Plainfield  v.  Batchelder,  604,  625. 
Piano  Co.  V.  Daly,  574,  576,  578. 
Piano  Co.   V.   Person,   575,   642. 
Plant  V.  Crane,  435. 
Flatt  V.  Brown,  487. 
Piatt  V.  Hibbard.  118. 
Plunkett  V.  Moore,  360. 
Plymouth  Co.  v.  Fee,  213. 
Poe  V.   Stockton,  56. 
Poinsett  v.  Taylor,  277. 
Polite  V.  Bero,  354. 
Polite  V.  .Jefferson,  279. 
Pomeroy  v.   Crocker,  643. 
Pomeroy  v.  Trimper,  127,  136,  160, 

360,  544. 
Pool  V.  Loomis,  277,  350,  421. 
Poole  V.  Adkinson,  291,  324,  342. 
Poor   V.   Woodburn,   301,   304,   306, 

308,  451,  540,  624,  647. 
Pope  V.  Jenkins,  210,  662,  680. 
Pope  V.  Tillman,  153,  155. 
Porche  v.   Bodin,   35. 
Porter  v.   Chandler.  147,  587,  662. 
Porter  v.  Dalhoff,  677. 
Porter  v.  Miller,  38,  43,  395. 
Porter  v.  Willet,   37,  451. 
Portland  Bank  v.  Stubbs,  145. 
Post  V.  Berwind  Co.,  60,  280. 
Pothonier  v.  Dawson,  341. 
Pott  V.   Oldwine,  230. 
Potter  V.  Cromwell,  30. 
Potter  V.  Hall,  9. 
Potter  V.  James,  382. 
Potter  V.  Merchants'  Bank,  474. 
Potter  V.  North,  49,  444.  552. 
Poucher  v.  Blanchard,  331. 
Powell  V.  Bradlee,  64,  234,  235,  244, 


299,   304,   307,   309,   311,   314,  530, 

535. 
Powell  V.  Hardy,  212. 
Powell   V.   Hinsdale.  437,   455,  624, 

647. 
Powell  V.  Smith,  98. 
Power  V.  Kindschi,  228. 
Power  V.  Telford,  178. 
Powers  V.  Bassford,  136,  338. 
Powers  V.  Benson,  492. 
Powers  V.  Florance,  612. 
Poyen  v.  McNeill,  681. 
Pozzoni  V.  Henderson.  257,  497. 
Pranke  v.  Herman,  85. 
Prater  v.  Frazier,  105,  556,  557. 
Pratt  V.  Donovan,  389,  645. 
Pratt  V.  Parkman,  167. 
Pratt  V.  Tucker,  437,  624. 
Prentice  v.  Ladd,  141. 
Prescott  V.  Heilner,  639,  640,  642. 
Prescott  V.  Starkey,  250. 
Presgrave    v.    Saunders,   441,   454, 

565,  566. 
Presley  v.  Powers,  106,  327,  328. 
Pribble  v.  Kent,  291. 
Price  V.  Helyer,  44. 
Price  Co.  v.  Rinear,  585,  600. 
Price  V.  Talley's  Admr.,  144. 
Prime  v.  Cobb,  315,  323,  335. 
Pringle  v.   Phillips,  319,   324,  325, 

335,  567. 
Prior    V.    Gray,    200. 
Prior  V.  White,  184. 
Printems  v.  Helfried,  615. 
Pritchard  v.  Hooker,   198,  590. 
Pritchard  v.  Norwood,  23,  527. 
Pritchard's   Admr.    v.   Culver,    142, 

144. 
Proctor  V.  Tilton,   214,  321,   322. 
Prosser  v.  Woodward,  437,  439,  554, 

555,  556.  557.  563,  565,  567. 
Puffer  Co.  V.  May,  76,  527. 
Pugh  V.  Calloway,  73,  237,  281,  467, 

586. 
Pulis  V.  Dearing,  37. 
Pullen  V.  Kensinger,  219. 


TABLE  OF  CASES  CITED. 


Ixxix 


Pullian    V.    Burlingame,    142,    147, 

294,  574. 
Pure  Oil  Co.  v.  Terry,  36),  416,  513. 
Purple  V.  Purple,  362,  386. 
Purves  V.  Moltz,  290,  322,  338. 
Putnam  v.  Cushing,  179,  185. 
Putnam  v.  Parker,  148. 
Putnam  v.  Wise,  520. 
Putnam  v.  Wyley,  112. 
Pyle  V.  Pennock,  93. 

Q. 

Quackenbush  v.  Henry,  127,  401. 
Queen  v.  Wernwag,  172. 
Quincy  v.  Hall.  439,  441,  563,  615. 
Quinn  v.  Parks,  204,  215. 
Quinn  v.  Wallace,  614. 
Quinnipiac   Co.    v.    Hackbarth,    25, 
399.  418. 

R. 

Raber  v.  Hyde,  33.  76. 

Raiford  v.  Hyde,  234. 

Ralston  v.  Black,  44,  246,  276,  333. 

Ralston  v.  Hughes,  100. 

Ramsay  v.  Bancroft,  112. 

Ramsdell    v.    Buswell,    36,    45,    47, 

134,   136,   249. 
Ramsey  v.  Waters.  627. 
Rand   v.   Nesmith,   468. 
Randall  v.  Cook,  185. 
Randall  v.  Gross,  125,  574,  689. 
Randall    v.    Persons,    571. 
Ranney  v.  Thomas,  434,   452,   454. 
Rapid  Safety  Co.  v.  Wyckoi",  483, 

686. 
Rapalje  v.  Emory.  ICO. 
Rapp  V.  Vogle.  151. 
Rathbun   v.  Berry.  197. 
Ratlibun  V.  Rannoy.  14,  435. 
Rauh  V.  Waterman,  371. 
FlawlingH  V.  Neal,  72,  256. 
Read  v.  Brayfon,  .'5.  76.  532,  68G. 
Read    v.   Markle,  679. 
Read  v.  MIddleton,  144,  241. 
Reade  v.  HawkB.  231. 


!  Reavis  v.  Horner,  375.  379. 
]   Rector  v.  Chevalier,  42,  682. 
!   Redinger  v.  Jones,  69,  81,  256. 
Redington  v.  Numan,  486. 
Redman    v.    Hendricks,    105,    184, 

504. 
Redman   -•.  Ray,  589. 
Reece  v.  Hoyt,  150. 
Reed   v.   King.  74,   143,   658. 
Reed  v.  Reed,  7",  566,  576. 
Reed  v.  Spaulding,  167. 
Reed  v.  Wiltbank,  82. 
Reeder  v.  Moore,  232,  429. 
Reese  v.  Harris,  105,  110,  111,  153. 

527,  567. 
Reese  v.  Higgins,   28.   33. 
Reese  v.  Jared,  89,  509. 
Reese  v.  Mitchell,  184.  199. 
Reeside  v.  Tischer,  234. 
Reeve  v.  Mitchell,  679. 
Reeves  v.   Reeves.   387.  388. 
Regina  v.  West,  115, 
Reid  V.   Panska,   657. 
Reidenour  v.  Beekman,  635.  642. 
Reinheimer  v.  Hemingway,  69.  76. 

143.  144,  145,  149,  150. 
Reiley   v.   Haynes,   600. 
Reist  V.  Heilbrenner,  40,  682. 
Rembaugh  v.  Phipps,  329. 
Remington  v.  Cady,  151. 
Renehan  v.  Wright,  26. 
Renfro   v.   Hughes,    463,    486, 

491. 
Renick  v.  Boyd,  29. 
Rennebaum  v.  Atkinson,  662. 
Reno   V.    Woodyatt,    359,    406, 

413. 
Rex   V.   Jones,  541. 
Rex  V.  Lewis,  353. 
Reynolds  v.  Ashley,  31. 
Reynolils   v.   Fisher,   228. 
Reynolds  v.  Horton.  57.  288. 
Reynolds  v.  LounHl)ury,  552.  555. 
Reynolds   v.    MiCorniick.    142,   .'.no. 

568. 
Reynolds  v.  McMillan,  228. 
Reynolds  v.  Salloe,  256. 


is; 


i<u 


Ixxx 


TABLE  OF  CASES  ClTElJ. 


Reynolds    v.    Shuler,    44,    91,    514, 

614. 
Rhines  v.  Phelps.  244. 
Rhoads  v.  Woods.  126.  494,  490. 
Rhode  V.   Louthain,  365. 
Rhodes  v.   Bunts,  627. 
Riicards  v.  Cornforth,  13. 
Rice  V.  Crow,  213,  531. 
Rich  V.  Baker,  43. 
Rich    V.    Lowenthal,    52,    353,    355. 

356.  430. 
Rich   V.   Penfield,  520. 
Rich  V.  Savage.  211.  380. 
Rich  V.  Ryder.  117,  149.  520. 
Richards  v.  Morey,  81,  86. 
Richards  v.  Nye,  281,  282. 
Richey  v.  Ford.  210,  324.  533. 
Richardson  v.  Adldns,  626. 
Rirhardson  v.  Reed,   47,   131.   135, 

436.  457,  527. 
Richardson  v.  Smith,  280,  508. 
Richardson    v.    Teasdall,    214.    215. 

642,   659. 
Richardson  v.  Vice.  612. 
Richardson  v.  York.  93,  94. 
Riciotto    V.    Clement,    51,    85,    584, 

059. 
Rickabaugh  v.  Bada,  687. 
Ricker  v.  Kelly,  90. 
Ricketts  v.  Dorrel.  87,  90,  180,  182, 

275. 
Rickner  v.  Dixon,  439. 
Riddle  v.  Driver,  179. 
Riddle  v.  Parke,  607. 
Riddle  v.  Weldon,  612. 
Rider  v.   E('gar,   292. 
Riebling   v.    Tracy,   534. 
Riewe  v.  McCormack,  513. 
Ridge  V.  Wilson,  611,  614. 
Riford  V.  Montgomery,  290,  335. 
Rigg  V.  Wilton,  604. 
Riggs  V.  Coker,  69,  686. 
Rightmyer  v.   Raymond,   179,   180. 
Riley  v.  Boston  Water  Power  Co., 

290,  320.  325,  335. 
Riley  v.  Littlefield,  569. 
Rinear  v.  Skinner,  359,  406. 


Ring  V.   Billings,  95. 
Ringgenberg  v.  Hartman,  406,  409, 

413,  657. 
Ringo  V.  Field,  605. 
Rinker  v.  I.,ee,  401. 
rtio  Grande  Co.  v.  Vinet,  269. 
Ripley  v.   Davis,  464,  468. 
Ripley  v.  Dolbier.  329. 
Rives  V.  Wilborne.  275.  425,  426. 
Roach  V.   Binder.  320. 
Roach  V.  Moulton.  360.  544. 
Robb  V.   Dolrenski,   85. 
Robbins  v.  Packard,  474. 
Robbins  v.  Slattery,  658. 
Robelin  v.  First  National  Bank,  5, 

615. 
Roberts  v.  Denio.  227. 
Roberts  v.  Gee.  429. 
Roberts  v.  Johannas,  582. 
Roberts  v.   Mason,   488. 
Roberts  v.  Norris,  320.  006. 
Roberts  v.   Porter.  580. 
Roberts  v.  Randel,  130,  137. 
Roberts  v.  Tennell.  019. 
Roberts  v.  The  Dauphin  Bank.  87, 

101. 
Roberts  v.  Wyatt.  107,  117.  521. 
Robertson  v.   Davidson,  378. 
Robertson  v.  Jones,  180.  507. 
Robins  v.  Phillips.  64. 
Robinson  v.  Atlantic  &  Gt.  W.  Ry., 

238. 
Robinson  v.  Austin.  353. 
Robinson  v.  Baker,  296.  337. 
Robinson  v.  Barrows,  464,  468. 
Robinson  v.  Beserick,  524,  527.  528, 

532. 
Robinson  v.  Bonjour.  407. 
Robinson    v.    Calloway.    114.    539, 

554,  555,  556,  561,  507. 
Robinson  v.  Camplin,  107. 
Robinson  v.  Hardy,  578. 
Rol)inson  v.  Kilpatrick  Co..  571. 
Robinson  v.  Hofman.  014. 
Robinson  v.  Mansfield.  40,  333. 
Robinson  v.  People,  361,  362. 
Robinson  v.  Richards,  22,  45. 


TABLE  OF  CASES  CITED. 


Ixxxi 


Robinson  v.  Shatzley,  677. 
Robinson  v.  Soule,  77,  405. 
Robinson  v.  Stewart,  25,  120. 
Rockwell  V.  Saunders,  170,  644. 
Rodesbaugh  v.  Cady,  386. 
Roderick  v.  People,  361. 
Rodgers  v.   Graham,    77,   324,   337. 

572. 
Rodman  v.  Nathan,  51,  534,  637. 
Rogers  v.  Arnold,  21,  42,  106,  109, 

112.   142,   437,  439,  539,  542,  560, 

563,  564,  566,  605,  608. 
Rogers  v.  Huie,  291,  328,  333. 
Rogers  v.  Kerr,  79,  669. 
Rogers  v.  Nideffer,  190. 
Rogers  v.  Raynor,  251. 
Rogers  v.  United  States  Co.,  405. 
Rogers  v.  "Wier,  237,  293. 
Rohe  V.  Pease,  639. 
Roland  v.   Gundy,'  291. 
Romain  v.  Van  Allen,  470. 
Roman   v.   Stratton,   363,   382,  391. 
Ronge  V.  Dawson,  49,  624. 
Roof  V.  Chattanooga  Co.,  213,  214, 

315.  .^31.  532. 
Roof  V.   Stafford,   46. 
Root   V.   Bonnema,  170,  320. 
Root  V.   French.   309.  311. 
Root  V.  Woodruff,  153,  558. 
Ropes  V.  Lane.  126,  164,  167,  170. 
Rose  V.  Cash,  39.  522. 
Rose  V.  Eaton,  530. 
Rose   V.   Gallup,    171,   458. 
Rose  V.  Groves,  482. 
Rose  V.  Hart.  624. 
Rose  V.  Pearson,  502. 
Rose  V.  Tolly.  106,  112,  631,  643. 
Rosecrans  v.  Asay,  573. 
Rosen  v.  Fischel,  407. 
Ross  V.  Cassldy,  136. 
RoHs  V.  Johnson,  327. 
RoHH  V.  Menefee,  79,   193. 
Rosfl-Meehan     Co.     v.     Pascagoula 

Co.,  213,  214. 
RoHS  V.  Morse,  670. 
Rotan  V.  Flotcher,  566. 
Rot.  h  V.  HawfH,  292. 


Rouse  V.  Washburn,  331,  665. 

Rouse  V.  Haas,  353. 

Rowan  v.  St.  Bank,  468. 

Rowan  v.  Teague,  628. 

Rowark   v.    Lee,   644. 

Rosum  V.  Hodges,  315,  323. 

Rowe  V.  Hicks,  125,  535. 

Rowe  V.  Sharp.  313. 

Rowell  V.  Klein,  33,  43.  48,  51,  95, 

431.   592. 
Rowland  v.  Madden,  533. 
Rowland  v.  Mann,  562,  574,  640. 
Rowley  v.  Bigelow,  297,  312. 
Rowley  v.  Gibbs,  463. 
Roy  V.  Goings,  202. 
Ruch  V.  Morris,  154,  159,  163. 
Rucker  v.  Donovan,  108,  557. 
Rumpf  V.  Barto,  296. 
Ruppert  V.  Zang,  122,  200. 
Rush  Co.  V.  Stubbs,  30. 
Russe  V.  Hendricks,  58. 
Russell  V.  Admundson,  574,  588. 
Russell  V.  Allen,  141,  146.  500. 
Russell  V.  Butterfield,  650. 
Russell  V.  Lennon,  251. 
Russell  V.   Minor,  105. 
Russell  V.  O'Brien,  62,  63. 
Russell   V.   St.   Mart,    194. 
Russell  V.  Richards,  95. 
Russell  V.  Smith,  456,  497,  516. 
Russell   V.  Walker,  55,  69,  203. 
Russell  V.  Willette,  56. 
Ryan  v.  Akeley,  415. 
Ryan  v.   Hraiit,  308. 
Ryan  v.  Clanton,  186. 
Ryan   v.    Fitzgerald,   632,   635,   653, 
Ryder  v.  Hathaway,  153,  172.  173, 

174,  176,  179. 
Ryle  V.  Knowles  Works,  215. 


S. 


St.  John  V.  OConncli.  344. 
St.  John  V.  Slandrlng,  145. 
St.  John  V.  Swanback.  587. 
St.  L..  Alton  &  C.  U.  U.  v.  CuhIcIIo. 
153,    182. 


Ixxxu 


TABLE  OF  CASES  CITED. 


St.    Louis,    A.    &    C.    R.    R.    Co.    v. 

Dalby.  522. 
St.  Martin  v.  Desnoyer,  36,  266. 
St.  Paul  Co.  In  re.  70.  74. 
St.  Paul  Co.  V.  Kemp,  172,  529,  591. 
St.   Mary's  Co.   v.   National   Bank, 

201. 
Sachs  V.  Norn,   194. 
Sadler  v.  Lewers,  314. 
Saenz  v.  Mumme.  81,  207. 
Saffell  V.  Wash,  257,  435,  436,  655. 
Sager   v.    Blain,   88,   105,   112,   161, 

649. 
Saling  V.  Bolander.  25.  464. 
Salisbury  v.  Barton,  570,  589,  595. 
Salkold   V.   Skelton.    435,   439,   441, 

454.  565. 
Salter  v.  Sample.  93.  94. 
Salter  v.  Sutherland,  659. 
Salt  Springs  Bank  v.  Wheeler,  327. 
Saltus  V.   Everett,  288.  309,  518. 
Sammons  v.  Newman,  387,  395. 
Samuel  v.  Agnew,  258.  609. 
Samuels  v.  Burnham.  570,  640. 
Sanborn   v.   Baker.   482. 
Sanborn  v.  Colman,  291,  293. 
Sanborn  v.  Leavitt,  244. 
Sandeford  v.  Hess,  286. 
Sanders  v.  Reed,  31,  95,  98,  101. 
Sanders  v.  Young,  151. 
Sanderson  v.  Lace,  434. 
Sands  v.  Pfeifer,  95,  98. 
Sanford  Manuf.  Co.  v.  Wiggin,  43, 

286.   605. 
Sanger  v.  Kinkade.  558. 
Sapsford   v.   Fetcher,  619. 
Sargent  v.  Chapman,  197,  203.  581, 

675. 
Sargent  v.  Courrier,  147,  148. 
Sargent  v.  Gile,  291,  293. 
Sargent  v.  Metcalf,  313. 
Sargent   v.    Strum,    297,    309.    311. 

331,  336. 
Sarjeant  v.  Blunt,  291.  293,  297. 
Satterthwaite  v.  Ellis,  203,  207. 
Saunders  v.  Closs.  210,  453. 
Saussay  v.  Lemp  Co.,  453. 


Savacool  v.  Boughton,  319. 

Savage  v.  Gunter,  434,  441. 

Savelle  v.  Waufuel,  214. 

Savery  v.  Hayes,  24. 

Savage  v.  Russell,  83,  641,  653. 

Savage   v.   Perkins.   131,   136,  326, 

451. 
Savercool  v.  Farwell.  478. 
Savile  v.  Roberts.  450. 
Sawtelle   v.    Rollins.    43,    110,   113, 

525. 
Sawyer  v.  Baldwin,  88. 
Sawyer  v.  Huff,  133.  605,  607. 
Sawyer  v.   Merrill,  320. 
Saxton    v.    Williams,   184. 
Sayers  v.  Holmes,  628.  646. 
Sayward  v.  Warren.  134. 
Scaling  v.   First  National    Bank. 

193.  206. 
Schaffer  v.  Castle,  186. 
Schaffer  v.    Faldwesch,   544. 
Schenck  v.  Sithoff,  68,  594. 
Schermerhorn   v.   Mitchell.  196,  107, 

284,  285,  321. 
Schermerhorn      v.     Van      Volken- 

burgh,  113,  563.  566. 
Schindler  v.  Westover,  295. 
Schlessinger  v.  Cook,  582. 
Schmitt  Co.  v.  Mahoney.  536,  ."98, 

601. 
Schmidt   v.    First   National    Bank, 

570. 
Schmidt  v.  Rankin,  190. 
Schnabel  v.  Thomas,  4(i3,  592. 
Schneider  v.  Westerman,  63. 
Schoneman  v.  Chamberlain,  300. 
Schoolcraft  v.  Simpson.  342. 
Schimmelpennich    v.    Bayard,    292. 
Schofield  v.  Ferrers.  443,  482,  .".ll, 

553. 
School  Dist.  v.  Bragdon,  525. 
School  Dist.  No.  5  v.  Lord,  112. 
School  Dist.  v.  Shoemaker,  450. 
Schott  V.  Youree,  399,  403,  410.  412. 
Schrader  v.  Wolflin.  184,  374. 
Schraeppel  v.  Corning,  323. 


TABLE  OF  CASES  CITED. 


Ix 


XXlll 


Schrandt  v.   Young.  120,  459,  464, 

4S4,  575. 
Schreiber  v.  Chicago  Co.,  148. 
Schulenberg  v.  Campbell,  44,  97. 
Schulenberg  v.  Harriman,  94,  175. 

290.  5ti3,  574. 
Sihwabeland  v.  Buchler,  303. 
Schwamb   v.    Sohaar,    322,   323. 
Schwartz  v.  Skinner,  142. 
Schwarz  v.  Kennedy,  C65. 
Schweer  v.  Schwabacher.  416,  654. 
Schweinfurth  v.  Matson,  587. 
Schweitzer  v.  Hanna.  209. 
Schweitering  v.  Rothschild,  547. 
Scott  V.  Beard.  660. 
Scott   V.   Biirrell.   657. 
Scott  V.  Elliott,  21,  22.  88,  114,  455, 

464. 
Scott  V.  Hughes,  501,  563. 
Scott  V.  Jones,  548. 
Scott  V.  King,  165. 
Scott  V.  McGraw,  237.  532. 
Scott  V.  Rogers,  297,  403,  472. 
Scott  V.  Scott,  409. 
Scofield  V.   National    Elevator  Co., 

571. 
Scrugham  v.  Carter,  150. 
Scudder  v.  Worster.  163,  164.  176. 
Peabury  v.  Ross,  4C0. 
Seagar  v.  Lamm,  211. 
Seals  V.  Stocks,  454. 
Feaman  v.  Luce,  255,  644,  645. 
Search  v.  Miller,  676. 
Sears  v.  Wingate,  518. 
Seattle    Bank    v.    MeerwaUlt,    323, 

532,   574,    581,   651,   653. 
Seaver  v.  Dingley,  43,  297,  304,  305, 

320,  340. 
Seaver  v.   Lincoln,  678. 
Sfavy  v.  Deiirborn,  73. 
Seay  v.  Bacon,  443. 
Scrman   v.    Feeney,   512. 
Sf'dalia  Bank  v.  Cassiday  Co.,  191, 

207. 
Sflhert   v.   M'Henry.   105.   170,  365, 

567. 
Selffert  v.  Campbell  35. 


ii; 


410. 


Selby  V.  McQuillan.  659. 
Selden  v.  Cashman,   485,  512, 

516. 
Seldner  v.  Smith,  39,  301.  397. 

412.  484,  495,  563,  596,  648. 
Seldon  v.  Hickock,  149. 
Self  V.  Sanford.  189. 
Sellar  v.  Clelland.  478. 
Seligman  v.  Armando,  158,  659. 
Sellers  v.  Catron,  324,  408. 
Semanye's  Case,  272. 
Sensenbrenner  v.   Mathews,   122. 
Sewell's  Falls  Bridge  v.  FisK,  4S5. 
Seymour  v.   Billings,  12,  437,   4  50, 

451.  540,  565,  605.  606. 
Settles  V.  Bond,  251. 
Sexton    V     McDowd,    53,    155,    283. 

428.  430. 
Seymour  v.  Ives.  474. 
Shaddon  v.  Knott.  22,  240. 
Shafer  v.  Ru.ssell,  483,  573. 
Shahan  v.  Smith,  661. 
Shannon  v.  Shannon,  7.  22.  40.  43. 
Shapiro   v.   Lankay.   531. 
Sharon   v.   Nunan,  24. 
Sharp  V.  Gray.  648. 
Sharp  v.  Johnson,  26,  120,  121,  142. 
Sharp  V.  Parks,  288. 
Sharp  V.  Whittenhall.  36,  4.1.  106. 
Shaver  v.  White,  151. 
Shaw  V.  Becket,  224. 
Shaw  V.  Coster,  248. 
Shaw  V.  Hoffman,  553. 
Shaw  V.  Levy.  240,  244. 
Shaw  V.  Tobias,  378.  386,  388.  390. 

391,  393. 
Sheari(k  v.  Hwber.  22.  23.  Ill,  129. 

234.  286. 
Shehan  v.  Golden,  HI 
Shelden  v.  Robin.son,  342. 
Sheldon  v.  Van  Bu.sklrk.  222. 
Shell  v.  Haywood,  93. 
Shi'lion  v.  Hcrry,  682. 
Slic'panI  V.  Hiillcrnpld.  &05. 
Shcphard   v.   HynoH.    190. 
Shephard  v.  Moodlip.  656.  663. 
Sh<-phord  v.  JdhnsDU,   163.  4i;s,  493. 


Ixxxiv 


TABLE  OF  CASES  CITED. 


Sherburne  v.  Strawn,  236. 

Sherman  v.  Finch,  486. 

Sherron  v.  Hall,  251,  367,  429.  530, 

535. 
Sherry  v.  Foresman,  392,  394. 
Shields  v.  Moody,  661. 
Shipley  v.  Rtasoner,  23. 
Shipman    v.    Clark,    244,    246,    248. 
Shirk   V.   Neible,  589. 
Shoemaker  v.  Simpson,  26,  322. 
Shreck  v.  Gilbert,  285,  674. 
Shomo  V.   Caldwell,   112,  114,   557. 
Shorey  v.  Hussey,  276. 
Short  V.  Barker.  289. 
Shroaf  v.  Allen,  124. 
Shue  V.  Ingle.  284. 
Shufeldt  V.  Pease,  309. 
Shull  V.  Barton,  235,  360,  361. 
Shultz  V.  Greenwood,  55. 
Shumway  v.  Leakey,  74,  569,  584. 
Shumway  v.  Rutter,  337. 
Shuter  v.  Page,  561,  563,  606. 
Siedenbach  v.  Riley,  193,  575,  674. 
Siegel  V.  Hanchett,  413. 
Sigler  V.   Hidy,   23,   24. 
Silsby  V.  Aldridge,  208. 
Silsbury  v.  McCoon,  180,  181,   248. 

509,  510. 
Silvis  V.   Aultman,   199. 
Simcoke  v.  Frederick,  113,  419,  616, 

681. 
Simel  V.  Dunn.  236. 
Simmonds  v.  Swift,  165. 
Simmons  v.  Brown,  516. 
Simmons  v.  Jenkins,  171,  185,  1S6, 

197,  202,  209. 
Simmons  v.  Lettystone,  328. 
Simmons  v.  Lyons,  555. 
Simmons    v.    Robinson,    156,    406, 

408,  411,  546. 
Simonds  v.  Parker,  368,  385. 
Simonds  v.  Wrightman,  600. 
Simonson  v.  Curtis,  23. 
Simpson    v.    M'Farland,    437,    441, 

442,  444,  561,  605,  606,  615. 
Simpson  v.  St.  John,  242. 
Simpson  v.  Perry,  629,  647. 


Simpson  v.  Wren,  109,  332,  340. 
Simpson   Co.   v.   Marshal,   54,   358, 

577,  583. 
Simpson  Co.  v.  Wilcox,  367. 
Sims  V.  Boynton,  567. 
Sims  V.  Glazner,  170. 
Sims  V.  Mead,  190,  205,  479. 
Sims  V.  Reed,  238,  250. 
Sinamaker  v.  Rose.  459.  602. 
Sinclair  v.   Wheeler,   213. 
Singer  Co.  v.   Benjamin,  266,  596. 
Singer  Co.  v.  Sammons,  314. 
Singer  v.  Nash,  192,  589. 
Single  V.  Barnard,  627,  631. 
Single    V.    Schneider,    180,    509. 
Sinnott  v.   Feiock,   85. 
Sippora  v.   Basset,   482. 
Six  Carpenters'  Case,  276,  613. 
Sketoe  v.  Ellis,  612. 
Skidmore  v.  Taylor,  88,  160. 
Skilton   V.   Winslow,   533. 
Skinner  v.  Chicago,  etc.,  R.  R.  109. 
Skinner   v.   Jennings,   255. 
Skinner   v.    Stouse,    106,    112,    138, 

333. 
Skipp  V.  Harwood,  151. 
Skow  V.  Locks,  583,  673,  676. 
Slack  V.  Brown,  482. 
Slayton  v.  Russell,  2^. 
Sleeper  v.  Osgood,  555,  605. 
Sloan   V.   Fist,   658. 
Sloan  V.  Implement  Co.,  548. 
Slocum  V.  Mayberry,  261,  262. 
Sluyter  v.  Williams,  320. 
Small  V.  Hutchins,  133,  135. 
Smith  V.  Aldrich,  213. 
Smith   V.  Archer,   329. 
Smith  V.  Aurand.  436,  441,  618. 
Smith  V.  Bahr,  657,  687. 
Smith   V.   Barse,   679. 
Smith  V.  Benson,  89. 
Smith  V.  Bowers,  408. 
Smith   V.   Brown,   399. 
Smith  V.  Brockett,  575,  577,  596. 
Smith  V.  Clark,  525. 
Smith  V.  Colson.  613,  617. 
Smith  V.  Coolbaugh,  644,  645. 


TABLE  OF  CASES  CITED. 


Ixxxv 


Smith  V 

Crockett,  37. 

Smith  V 

Dennis,  297,  313. 

Smith  V 

Dinneen,  C36. 

Smith  V 

Doty,  308. 

Smith  V. 

Eals,  24. 

Smith   V 

.    Emerson,    543,   550, 

608. 

Smith  V 

Epley,  197. 

Smith  V 

Field,  308. 

Smith  V 

Fisher,  365,  657. 

Smith  V. 

Fyler,  613,  617. 

Smith  V 

Goodwin,  101,  102. 

Smith  V. 

Graves,  113,  114.  291, 

557. 

Smith  V 

Griffith.  473,  479. 

Smith  V. 

Harris,  577. 

Smith  V 

Houston.  35,  458,  62 

6. 

Smith  V 

Howard,  367,  681. 

Smith  V 

Huntington,  45. 

Smith  V 

Lisher.  392. 

Smith  V 

Lydick.  112. 

Smith  V 

Lynes,  311.  313. 

Smith  V 

McCoole.  159. 

Smith  V. 

McFall.  274.  350.  351, 

352, 

367. 

Smith  V 

McGregor,  423.  428. 

435. 

441. 

Smith  V. 

McLean.  49,  155.  186, 

190, 

204.  32 

0.  340.  420,  556. 

Smith  V. 

Montgomery,  22,  246, 

540. 

558. 

Smith  V. 

Moore.  101. 

Smith  V. 

Morrill,  170. 

Smith  V. 

Mcsby,  404,  408. 

Smith  V. 

Orser,  111,  135. 

Smith   V. 

Phelps.  624. 

Smith  V. 

Plomer.  105.  108. 

Smith  V. 

Prifs.  378. 

Smith  V. 

Roby.  388. 

Smith  V. 

Sanborn.  153. 

Smith  V. 

Sherman.  482. 

Smith  V. 

Sherwood.  482. 

Smith   V. 

Smith.   72,   251,  252, 

326. 

C35. 

Smith  V. 

Snyder.  245.  437.  452, 

457. 

G05.  606. 

Smith  V. 

StfvcnH.  200.  491. 

Smith  V. 

StiibbH.  356.  364. 

Smith    V 

Trawl,    3.M. 

Smith  V.  Wisconsin  Co.,  64.  572. 
Smith  V.  Welch,  171,  320. 
Smith  V.  Whitten,  366. 
Smith    V.    Whiting.    351,    358.    361. 

362.  458. 
Smith  V.  Williamson.  40,  110,  343. 

525.  530.  563.  680. 
Smith   V.   Winston,  452. 
Smith   V.   Wood,  521,  526.  527,  621. 
Smith  V.  Young,  342. 
Snedeker  v.  Quick,  153,  420,  558. 
Snelgar  v.  Hewston,  436. 
Snow  V.  Como,  C07. 
Snow  V.  Roy.  137.  565. 
Snyder  v.  Vaux.  22.  88.  94,  98.  153. 

177,  178.  179,  181,  182. 
Snyder  v.  Yates,  100,  195. 
Soames  v.  Watts,  335. 
Solomons  v.  Dawes.  343,  344. 
Somes  V.  Brewer,  312. 
Sommer  v.  Adler,  178,  182,  596. 
Sommer  v.  Jenkins.  186. 
Soper  Co.   v.   Halsted  Co.,  59.   298. 

301.  302.  303. 
Southbridge  Bank  v.  Mason,  31,  o2. 
Southern  Co.  v.  Johnson,  641. 
Sopris  V.  Lilley,  369,  371,  381. 
Sopris  V.  Truax,  320. 
Southall  V.  Gainer,  539. 
Southcote  V.  Bennett.  136. 
Southern  Plank  Road  Co.  v.  Hixon. 

88. 
Southwick  V.  Smith,  112. 
Spahr  V.  Tartt,  125.  574. 
Spangler  v.  Bulterfleld,  63. 
Sparks  v.  Green,  78. 
Sparks  v.  Heritage.  437.  571. 
Sparks  v.   Hop.sen.  414. 
Sparling  v.  Marks.  138. 
Speor  V.  Skinner,  358.  421,  424.  427. 

621. 
Spencer  v.  Bell.  359.  652. 
Spencer  v.  BIdwell.  546.  548. 
Sjjencer  v.   Hla<-kman,  334. 
Si)en<'<'r  v.   DavidBon.  355. 
Spencer  v.  Dearth.  531. 
Spencer  v.   DIckcrHon.   368. 


Ixxxvi 


TAKI.K  OF  CASKS  ClTElJ. 


Spen.er  v.   M'Gowen.   47,   238,   2-t8, 

268. 
Spencer  v.   Vance.  66.  688. 
Spicer  v.  Waters,  468. 
Spooner   v.    Holmes.   294,   315,   316, 

590. 
Spooner   v.   Mandicster,   292. 
Spooner  v.  Ross.  59,  144. 
Spoor  V.  Holland,  500. 
Spraftue  v.   Birehard,  271. 
Sprague  v.   Clark.  22,  23,  38,   106, 

114.  542.  55J. 
Spragiie  v.  Kneeland    625. 
Spraiglits  v.  Hawley.  201.  3B4. 
Spratley  v.  Kitchens.  (540.  684. 
Spring  V.  Bourland,  234.  244. 
Springer  v.  I.ipsis.  209. 
Springfield  Co.  v.  Shackelford.  56. 

187. 
Springfield  Co.  v.  Weiler.  158. 
Sproule  V.  Ford,  468. 
Squires  v.   Smith,  133,  235,  333. 
Sta.  y  V.  Farnham,  541. 
Stafford  v.  Baker,  400,  401,  665. 
Stahl  V.  Chicago  Co.,  532,  572,  651. 
Stahl  V.   Lynn,  33. 
Stall  V.  Wilhur.  143. 
Stanchfield    v.    Palmer     153.    319, 

320,  325.  334.  335. 
Stanley  v.  Donahoe.  492. 
Stanley    v.    Gaylord,    i\,    115.    290, 

293.  32  t,  335.  557. 
Stanley  v.  Neale.  302.  G54. 
Stanley  v.  Robinson.  CO.  61.  63. 
Standard  Co.  v.   Schiiltz.   197. 
Standard  Co.  v.  Van  Alstine,  216. 
Standard  Co.  v.  Schloss,  205.  660, 

663,    665. 
Standard  Oil  Co.  v.  Bretts.  84. 
Stanfield  v.  Stiltz,  594. 
Stansfeld  v.  Hellawell.  363. 
Stanton  v.  Hodges,  277. 
Staples   V.   Word,   356. 
Stapleford  v.  White,  105.  320. 
Starke  v.   Payne,  85,  378,  654. 
Starky  v.  Kelly,  470. 
Starkey  v.  W'aite,  576,  651. 


Starr  v.  Cox.  194.  198.  205. 

Starritt  v.  Deerfield.  252. 

State  V.  Armfield,  431. 

State  V.  Barrels  of  Liqnors.  242. 

State    V.    Beckner,    431. 

State   V.    Boisliniere.   350. 

State  V.  Brooker.  237. 

State  V.  Farrar.  521.  522,  527. 

State    V.    Jennings,    249,    276,    283, 

350. 
State  V.  McCann    115. 
State  V.  Patten,   315,  317. 
State   V.    Smith,    272. 
^State  V.  Shevelin  Co.,  181,  479. 
State  V.  Spiva,  227,  228. 
State    V.    Stephens,    350,    351,    352, 

361,  362. 
State  V.  Wells,  Fargo  &  Co.,  311. 
State  V.  Williams,  273. 
State  V.  Wilson,  428,  431. 
State  Bank  v.  Lowe,  200. 
State  Bank  v.  Norduff,  324. 
Staiib'i  V.  Blaine  Bank,  61. 
Stearns  v.  Raymond.  175. 
Stedman  v.  Bates.  615.  618. 
Steele  v.  Matteson,  052. 
Steele  v.   Thompson,   617. 
Steele  v.  Webster,  298. 
Steere  v.  Vanderberg,  56,   76,  659. 
Stein  V.  Hill,  398. 
Steiner   v.    Allen,   402. 
Stephens  v.   Frazier,   280. 
Stephens  v.  Halsted,  284. 
Stephens  v.   Hart,  298. 
Stephens  v.  Santee,  164. 
Stephens  v.  Scott,  628,  630. 
Stephens   v.    Perrine,    194. 
Stephenson    v.    Lichtenstein,    122. 
Stephenson  v.  Little,  173. 
Steur  V.  McGuire,  430. 
Stevens  v.  Cunningham,  295. 
Stevens  v.   Eno.  126,  164. 
Stevens  v.  Georgia  Co.,  214. 
Stevens  v.  Gordon.  56.  57.  76,  587. 
Stevens    v.    Osman,    153,    154,    155, 

558. 
Stevens   v.   McClure.   460. 


TABLE  OF  CASES  CITED. 


Ixxxvil 


Stevens  v.   Springer,  598. 
Stevens  v.  Tuite,  35,  36,  376,  379, 

395.  407,  418,  422.  423.  450.  456, 

461,  464,  484.  504. 
Stevenson  v.  Lord,  572,  641.  660. 
Stevenson   v.   Miller,   363. 
Stevenson  v.  Smith,  482.  559. 
Stever  v.  Brown.  529,  570,  584. 
Stevison  v.  Earnest.   371,  390,  400, 

403,  558. 
Stewart  v.  Drake.   471. 
Stewart  v.  Mills.  574. 
Stewart  v.  Wells.  49.  246. 
Stickney    v.    Allen,    120,    122,    466, 

483. 
Stickney  v.  Smith,  555,  556,  557. 
Stier  V.   Harms,   664. 
Stiles  V.   Davis,  295,  327. 
Stiles  V.  Griffith.  218.  225. 
Stillman   v.   Squire,   276,   320,   325, 

541. 
Stiraor  v.  Allen,  6.j7. 
Stimpson  v.  Reynolds,  244,  24S. 
Stimson  v.  Farnhani,  500. 
Stockweli  v.  Byrne,  392. 
Stockwell  V.  Phelps.  44.  100,  101. 
Stockweli   V.   Robinson.   56,  57,   68, 

285,   322,  587. 
Stofkwell    V.   Veitch,    222. 
Stoddard  v.  Gilman,  218,  227. 
Stollenwerck  v.  Thatcher.  316. 
Stoltz   v.   The   People.   627. 
Stone    V.    Bird,    237. 
Stone  V.  Clough,  4  74,  531. 
Stone  V.  Jenks,  210. 
Stone  V.  O'Brien,  321.  322.  598. 
Stone  V.  McNeeley,  56.  587. 
Stone  V.  Livingston.   135,  33S.  341. 

346. 
Story   V.  O'Dea.  369,   .'571,  .';79.   4(i.".. 

412. 
Story  V.  HobinKon,  137. 
Story  f'lark  Co.  v.  GlbbcMiH,  597. 
Storz   V.    FinkelstPln.   366. 
StouKhton  V.  Rappalo.  22,  23,  111. 
Stow  V.  Yarwood.  517. 
Stowell  V.  Lincoln.  458. 


Stowell  V.  Otis,  566. 

Stowell  V.   Pike,   102. 

Strahle    v.    First    National    Bank. 

571. 
Strahorn  Co.  v.  Florer.  192. 
Strahorn   v.   Heffner,  355. 
Strang  v.  Whitehead,  482,  488. 
Strasburfeer  v.  Barber,  514. 
Strasser  v.  Goldberg.  592. 
Stratton  v.  Allen.  320. 
Straus   V.    Ross,   167. 
Strauss  v.  Smith.  51. 
Street  v.  Morgan,  57L  578. 
Street  v.  Ne'son.  75,  181. 
Streeter  v.  Strceter,  517.  518.  619. 
Strong  V.  Daniel,  385. 
Strong  V.  Keene,  458. 
Stroud  V.  Morton,  660. 
Stuart  V.  Phelps,  468. 
Studdert  v.  Hassell.  434.  648. 
Sturges  V.  Keith, -341. 
Suckstorf  V.   Butterfield.  571. 
Sudbury  v.  Stearns,  88. 
Suggett's  Admr.  v.  Cason,  li;4.  165. 
Sullivan  v.  Stephenson.  242. 
Sultan,  etc.  v.  Providence  Co..  669. 
Summer  v.  Kelley.  211,  578.  657. 
Summers  v.    Parker,   388. 
Summerville   v.  Stockton  Co..   121, 

123,  147.  208,  210,  570.  599. 
Summons  v.  Austin,  107.  11.!,  114, 

115. 
Suiiberg  v.  Babiock,  54,  5:!7. 
Sunbolf  V.  Alford.  118.  137.  272. 
Supervisors,  etc.  v.  Manny,  224. 
Sup|)iger  v.  Grauz,  79,  403. 
Surles,  V.  Sweeney,  323. 
Su.squehanna  v.   Finney,  s;!.   163. 
Sutcliffo   V.    Dohrman.   5(Mi. 
Suiro  V.   Hollo.   164.  313. 
Siiydani   v.   .Jenkins,  456,   464,   480, 

501,  516, 
Sv.ain  v,  RoyH.  460.  628. 
Swaiin  v.  Shorn  well.  14.  15.  420.  • 
Swartout  v.   Evans.  342. 
Swartz  v.  KnKllHh.  357. 
Swoonoy  V.  Lonituo.  402. 


Ixxxviu 


TABLK  OF  CA.SE8  ClTKD. 


Sweetzer  v.  Mead.  643. 

Swift  V.  Barnes,  470,  478,  481. 

Swift  V.  Crocker,  678. 

Swope  V.  Burnliam,  569,  584,  653. 

Syford   v.   Shriver.   125. 

Sylvester  v.  Ammons,  203,  591. 


T. 


Tabor  v.  Hutson,  511. 
Tackaberry   v.    Gilmore,    210,    549, 

584,  674. 
Taft  V.  Stetson,  28. 
Talbot  V.  De  Forest,  185,  239. 
Talbott  V.  Padgett,  581. 
Talcott  V.  Crippen,  193.  484,  597. 
Talcott  V.  Rose,  411,  588. 
Talmadge  v.  Scudder,  331. 
Tallman  v.  Turrk,  323. 
Tamplin  v.  Addy,  304. 
Tanco  v.  Booth.  531. 
Tandler  v.   Saunders,  57,  492,  528. 
Tannahill  v.  Tuttle,  185. 
Tardy  v.  Howard,  630. 
Tarpey  v.  Shillenberger,  382. 
Tanton  v.  Slyder,  412,  663. 
Tarpy  v.  Shepherd,  476. 
Tatum  V.  Sharpless,  115. 
Taylor  v.  Alexander,  282. 
Taylor  v.  Carryl,  440. 
Taylor  v.  Ellis,  236. 
Taylor  v.  Hathaway,  623. 
Taylor  v.  Jackson,  367,  570. 
Taylor      v.      Kalamazoo      Circuit 

Judge.  549. 
Taylor  v.  Ketchum,  476. 
Taylor  v.  Moore,  617. 
Taylor  v.  Morgan,  460,  510. 
Taylor  v.  Morton,  487. 
Taylor  v.  Richardson,   67,  659. 
Taylor  t.  Riddle,  162,  549,  558. 
Taylor  v.  Seymour,  336. 
Taylor  v.  Springfield  Co.,  211. 
Taylor  v.  Taylor,  72. 
Taylor  v.  Trask,  47. 
Taylor  v.  Welbey,  47. 
Taylor  v.  Wells,  155,  447. 


Teall  V.  Felton,  25. 
Teall  V.  Van  Wyck,  387. 
Tedrick  v.  Wells,  401. 
Teele  v.  Miles,  504. 
Teeple  v.  Dickey.  84,  687. 
Tell  V.  Beyer,  146. 
Templeman's  Case,   108. 
Tennessee  Co.   v.  Sargent,  298. 
Terry  v.  Allis.  475. 
Terry  v.  Johnson,  354,  355. 
Terwillinger  v.  Wheeler,  277. 
Thamling  v.  Duffy,  589. 
Thatcher  v.  Harlan,  345. 
Thayer  v.  Hutchinson,  557,  562. 
Thayer  v.  Turner,  306,  308,  309. 
The   Brig  Sarah,  etc.,  524. 
The  People  v.  Schuyler,  277. 
The  Six  Carpenters'  Case,  276,  613. 
Thieme  v.  Zumpe,  527,  579. 
Thimblethorp's   Case,   45. 
Thomas  v.  Abbott,  8. 
Thomas  v.  Crofut,   101. 
Thomas  v.  Irwin,  398,  406. 
Thomas  v.  Price,  415,  663. 
Thomas  v.  Spofford,  350,  360,  3S5, 

481. 
Thomas  v.  Wilson,  393. 
Thomas  v.  Williams,  147. 
Thome  v.  Colton,  173. 
Thompson   v.    Blanchard,   138. 
Thompson  v.  Button,  105,  240,  623. 
Thompson  v.  Dolliver,  70,  122. 
Thompson  v.    Dyer,   192,  528,   637. 
Thompson,  Ex  parte,  247,  248. 
Thompson  v.   Fuller,  302. 
Thompson  v.  Lacy,  118. 
Thompson  v.  Lee,  632,  637. 
Thompson  v.  Mashiter,  614. 
Thompson  v.  Nicholls,  572,  586. 
Thompson  v.  McLean,  65. 
Thompson   v.   Rose,   122,   299,  342, 

344. 
Thompson   v.   Shirley,   319,   342. 
Thompson  v.  Sweetser,  563,  564. 
Thompson  v.  Trail,  345. 
Thompson  v.  Thompson,  324. 
Thorn  v.  Lazarus,  535,  549. 


TABLE  OF  CASES  CITED. 


Ixxxix 


Thornily  v.  Pierce.  687. 

Thorton  v.  Dwight  Co.,  188. 

Thorp  V.  Burling,  334. 

Thorp    V.   Starr,   679. 

Three  States  Co.  v.  Blank,  403,  463. 

Thurber  v.  Richmond.  445,  455. 

Thurston    v.    Blanchar",    304.    308, 

309,  320,  335. 
Tibbal  v.  Cahoon,  39. 
Tice  V.  Norton,  617. 
Ticknor  v.  McClelland,  07,  191. 
Tifft  V.   Horton.  30,  31. 
Tilden  v.  Stilson,  203,  323. 
Tifft   V.  Tifft,  525. 
Tifft  V.  Verden.  38. 
Timp    .-.    Dockham.    133,    440,    441, 

575,    604,    609.    625. 
Tinsley  v.  Block,  453,  454,  664,  665. 
Tisdale  v.  Pray,  195. 
Tison's  Admr.  v.  Bowden,  111,  237, 

557. 
Titcomb    v.    Wood,    291,    297,    298, 

305. 
Tittle  V.  Kennedy.  35,   .",13. 
Titus  V.  Mabee,  185. 
Todd  V.  Cruikshanks,  24,  25. 
Toledo  Co.  V.  American"  Co.,  321. 
Toles  V.  Cole,  396. 
Tome  V.  Dubois,  530. 
Tomlin  v.  Fisher,  38. 
Tomlinson  v.  Collins,  111. 
Tompkins  v.  Haile,  114. 
Tootle    V.    Buckingham,    172.    207, 

662,  603. 
Torean  v.  MfClure,  321. 
Torres  v.  Rogers,  323. 
Tousey  v.  Bishop,  387. 
Tousey  v.  Post,  227.  229. 
Towie  V.  Dresser.  300. 
Town  V.  Evans,  22,  39. 
Town  V.  Wilson.  5-10,  541,  543,  679. 
Towne  v.  Leidle.  IWl,  580,  C34,  636. 

638. 
Towns  V.   Boarman,  612. 
Towns   V.    Smith,    594. 
Towns  V.  Wilcox.  t;79. 
TownHend  v.  UarKy,  194. 


Tracy  v.  Corse,  55. 

Travers  v.  Cook,  124. 

Tracy  v.  Swartout,  460. 

Trapnall    v.    Hattier,    42.   303.   310. 

336. 
Travers  v.  Inslee.  21,  39,  222. 
Treadwell  v.  Brown,  151. 
Treman    v.    Morris,    404,    411.    411^ 

6S5. 
Trevilia  .  v.  Pyne,  620. 
Trieber  v.  Knabe.  612. 
Trimble  v.  Mercantile  Co..  209.  4'".:V 
Trimble  v.  State.  395. 
Tripp  V.  Howe,  353,  368.  429.   o\:\. 

634. 
Tripp  V.  Leland,  135,  228. 
Tripp  V.  Riley,  150.  174. 
Trotter  v.  Taylor.  437.  605. 
Troy  V.  Kane,  228. 
Troy  &  Lansing  R.  R.  Co.  v.  Kane. 

218. 
Trudo   v.   Anderson,   292,   294,   320, 

335. 
Trueblood  v.  Knox,  405. 
Truitt  V.  Revill,  49.  280. 
Trulock  V.  Rigsby.  616. 
Truman  v.  Young.  572. 
Truss   v.    Byers,  588. 
Tuck  V.   Moses,  353,   363.   368.   30^. 

395.  436,  481,  404. 
Tucker  v.  Edwards.  253. 
Tucker  v.  Henderson,  252. 
Tucker  v.  P?rks.  464,  570,  578. 
Tu(kwoo(l    v.    Hiinthorn,   594,    l>\^~. 

659. 
Tudor  Iron  Works  v.  Hill,  29. 
Tuley  V.  Mauzey,  439. 
Tulley  V.   Harloe,  559. 
Tullis  V.  Orthwein,  256. 
Tully    V.    Fairly.   313. 
Tummons  v.  OrIo,  370. 
TumultP  V.  .Jordan.  653. 
Turner  v.  Uettcr.  475,  517. 
Turner  v.  State.  (00. 
Turnor  v.  Turner.  370,  371,  402. 
Turpin  V.  CunniiiKhani,  207. 
Tiirrill   V.   Crawl. -y,   118. 


Xt-' 


TABLE  OF  CASES  CITED. 


Tuthill  V.  Wheeler.  IOC. 

Tuttle  V.  Cook.  277. 

Tuttle  V.  Cooper.  393. 

Tuttle  V.  Robinson,  337. 

Twells  V.  Coldville,  353. 

Twinani    v.    Swart,    253,    4(14.    4f)l. 

493. 
Tyler  v.  Davis,  356. 
Tyler  v.  Freeman,  129. 
Tyler  v.  Strang.  104. 
Tyus  V.  Rust,  109,  118. 

v. 

Udell  V.  Slocum.  S3.  209.  549. 
Ulrifh    V.    McConaughy,    578,    579, 

633,   659. 
Underhill  v.  Reinor,  247. 
Underwood  v.  Birdsall.  120,  124. 
Underwood  v.  White,  438,  439,  605, 

627. 
Union  Bank  v.  Hutton,  204 
Union  Bank  v.  Wolfe  Co..  27,  31. 
Union    National    Bank    v.    Moline 

Co.,  212.  236. 
Union  Lumber  Co.  v.  Tronson,  278. 
Union    Stove    Works    v.    Breiden- 

stein.  355,  377,  407. 
United   States  v.   Brown,   370,   372. 
United  Stites  v.  Bryant,  350. 
United  States  v.  Buchanan,  137. 
University  v.  State  Bank,  324. 
Updike  v.  Henry,  126,  165. 
Upham    v.    Allen.    142.    146,    527. 
Upham  V.  Caldwell,  57. 
Upp  V.  Neuhring,  254. 
Usry  V.  Rainwater,  150. 


V. 


Vaiden  v.  Be'l.  37,  45. 
Vail  V.  I.ewis,  270. 
Vail  V.  Weaver.  27.   29. 
Valentine  v.  Jackson.  617. 
Van   Alstine  v.  Wheeler.   572. 
Van  Aukin  v.  O'Connor.  590. 
Van   Baalen   v.    Dean,  56,   76,   285, 
529,  675. 


Van  B'uskirk  v.  Purinton,  296. 

Van  Cleef  v.  Fleet.  297. 

Van  Dyke  v.  Clark.  575. 

Van  Dyke  v.  New  York  Co.,  547. 

Van  Gorder  v.  Smith.  532,  668. 

Van  Grundy  v.  Carrigan.  639.  640, 

687. 
Van  Norden  v.  Morton.  269. 
Van  Meter  v.  Barnett,  634. 
Van   Sniidt  v.   Bourn,  25. 
Vandenburgh  v.  Van  Valkenburgh, 

554.  555,  556. 
Vanderuilt   v.   Richmond   Co.,   277. 
Vanderburgh  v.  Bassett,  43. 
Vanderslice  v.  Newton,  482. 
Van  Duyne  v.  Coope,  386.  391. 
Van   Namee   v.    Bradley,    113.   280. 

440,  562,  564,  566,  605. 
Van  Neste  v.  Conover,  137. 
Van  Pelt  v.  McGraw,   101,  102. 
Van  Valkenburgh  v.  Thayer.  329. 
Van  Winkle  v.  Udall.  275. 
Varner    v.   Bowling,   358.    361. 
Vaughn  v.   Norris,    370,   372. 
Vaughn  v.  Owens,  62,  285. 
Vausse  v.  Russel,  87,  89.  98. 
Veeder  v.   Fiske.   685. 
Vennum  v.  Thompson.  160. 
Ventress  v.  Smith,  289. 
Vera  v.  Constantino.  405. 
Vernon  v.  Wyman,  441. 
Vickery  v.  Sherburne.  605. 
Vinal    V.    Spofford.    70.    372,    669, 

686. 
Vinall   V.   Hendricks,   186. 
Vinson   v.    Ardis,    143. 
Vinson  v.  Knight,  587. 
Vinton   v.   Mansfield,  407. 
V.  &  M.  "I.  R.  Co.  V.  Ragsdale,  553. 
Vocht  V.  Reed,  217. 
Voge  V.  Breed,  664. 
Voeger  v.  Langenberg,  187. 
Vogel  V.  People,  657. 
Vogle  V  Badcock,  556. 
Vogle,  In  re,  239. 
Voight  Co.  V.  Oettinger,  178. 
VoUum  V.  Simpson,  451. 


TABLE  OF  CASES  CITED. 


XCl 


Voorhees  v.  Earl,  308. 
Voorhis  v.  Freeman,  93. 
Vose  V.  Hart,  437,  438,  605. 
Vose   V.    Muller,   452. 
Vose  V.   Stiokney,  336. 
Vose  V.  Whitney,  120. 
Vroom  V.  Exrs.  of  Smith,  370. 

W. 

Wabash  Co.  v.  Hense,  321. 
Waddell  v.  Brad  way,  403. 
Waddy   Thompson.   Ex  parte.   247, 

248. 
Wade  V.   Gould.   ."j86. 
Wade  V.  Mason.  105,   111. 
Wagner  v.  Olson,  250.  251,  254. 
Wagner  Co.  v.  Robinson,  601,  661, 

663. 
Waite  V.  Starkey,  684. 
Wakeman  v.  Lindsay.  647. 
Walbridge  v.  Shaw,  440,  445,  649. 
Walcot  V.  Pomero>,  111. 
Waldman  v.  Broder.  150,  434,  439. 
Wall    V.    De    Mitkiewicz,    122,    213. 

214,  324,  422,  527,   530,  535,  632, 

641.  668. 
Walker    v.    Fenner,    13G,    142,    145, 

330. 
Walker  v.  Hampton,  277. 
Walker  v.   Hunter.  629. 
Walker  v.  Schinuel,  31. 
Walker  v.   Smith,  511. 
Walko  V.  Walko.  530,  654.  686. 
Wallace  v.  Brown,  44.  647. 
Wallace    v.    Clark,    3;t2,    397.    440. 

648. 
Wallace  v.   Hilliard.  62:5,  624.  630. 
Wallis   V.   Savil,  565.   614. 
Walls   V.   .Johnson,   396.   445. 
Walpole  V.  Smith,  43,  106.  127.  320, 

439.  442,  565.  604.  609.  625. 
Walsh  V.  AdamH.  151. 
Walfih    V.    Hall.    583. 
WalBh    V.   Talt.    191. 
WaltfTK    V.    Ti«'Ik(nipyf'r.   316. 
Walimaii    v.    AlllHon.  616. 
Wambold   v.   VIck.  56.  57.  5:50. 


Wangler  v.   Franklin,  77.  213. 
Waples   V.    Adkins.   Admr.   of   Mc- 

Ilvaine.   349. 
Ward  V.  ^yre.  170. 
Ward  V.  Henry.  261. 
Ward    V.    Hood.    354. 
Ward   V.    Macauley.   44. 
Ward  V.   Masterson,  558,  626,  631, 

644. 
Ward  V.  Parker.  195.  198. 
Ward  V.  Smith,  162. 
Ward  V.  Taylor,  129. 
Ward    V.    Woodburn,   137. 
Wardrobe  v.  Calif.  Stage  Co.,  513. 
Ware  v.  Percival.  224. 
Warner  v.  Aughenbaugh.  l.")5,  163. 
Warner    v.    Caulk.    517. 
Warner  v.  Cushman,  174. 
Warner  v.  Hunt,  112,  494.  626. 
Warner  v.  Matthews.  43,  109.  391, 

392.   440,   462,  605.  648. 
Warner   v.    Miltenberger.   675. 
Warner    v.    Sauk    Co.    Bank.    160. 

661. 
Warner  v.  Warner.  192. 
Warren  v.   Cole,   488.  510.  512. 
Warren    v.    Leland.    33.    111.    245. 

526,  557.  582. 
Warren  v.  Leiter,  53. 
Washburn  v.  Huntington.  659. 
Washington  v.  Love.  194,  205. 
Washington    Co.    v.    Webster.    377. 

410,  411.  413.  418.   435.   457.  4',:>. 

462,   467.   468.   472.   4S1.   486.   488. 

.'05.  513.  514,  651. 
Wa.sspinian   v.  McDonahl.   197.  .'12. 
W;iit'ibuiy    v.    Wcstervelt.    "1.    .".2, 

56. 
Watcruiau     4i     Wil.'     \.     .M:;t.s(ia. 

102.   i:;i.  r::o. 

Waterman     v     Hoblnson.    44.     105, 

111.  i;.' 
WutciH  V.  UiMjhiT.  30.  573. 
Watkins   v.    Malrd.  306. 
Walkins  v    Pano,  234.  241.  248.544. 
Watson    V.    .Mcduln-.    131. 
WHt.son    V.  To.ld.   234. 


XCll 


TABLE  OF  CASES  CITED. 


Watson  V.  W-'.tson,  37,  45,  52,  278, 

288,  428,  (;S8. 
Watt  V.   Potter.   343,  344. 
Watterson    v.    F'uellhart,    354,    3i;i. 
Wattles   V.    Dubois,    143,    147,    157. 
Watts  V.  Green,   C30. 
Waugh  V.  Bussel,  387. 
Way  V.  Barnard,  138,  434. 
Weatherbee  v.  Green,  196. 
Weathersby  v.    Sleeper,   95,   350. 
Weaver  v.  Darby,  494. 
Weaver  v.   Field,   385. 
Weaver  v.  Lawrence,   6,  8,   14,  23, 

33,  39. 
Webb  V.   Hecox,  359,   653. 
Webb  V.  Fox,  110,  554. 
Webb  V.  Phillips,  74. 
Webber  v.   Davis,  523. 
Webber    v.     Shearman,     618,     619, 

621. 
Webber  v.  Underbill,  682. 
Weber  v.  Henry,  261,  268,  577,  661. 
Weber  v.  Hertz,  71,  72. 
Webster    v.    Brunswick    Co.,    214, 

324,    339,    655. 
Weed  v.  Hall,  2G. 
Weed  V.  Hinton,  273. 
Weed  V.  Pace,  308. 
Weeks   v.   Peach,   616. 
Wegner  v.  Second  Ward  Bank,  25, 

465,  575. 
Weil  V.  Ryus,  191. 
Welch  V.  Milliken,  584. 
Weidel  v.  Roseberry,  618. 
Weil  V.  Silverstone,  173. 
Weinberg  v.  Conover,  248,  278. 
Weinger,  In  re.  268. 
Weiner  v.  Van  Rensalaer,  235,  283, 

534,  685. 
Weis  V.   Levy,   255. 
Welborn  v.  Shirley,  51. 
Weizen  v.  McKinney,  647. 
Welch  V.  Durand,  487. 
Welch  V.  Sackett,  186. 
Welsh  V.  Smith,  153,  420. 
Weld  V.  Hadley,  557. 
Welker  t.  Wolverkuehler,  308,  315. 


Wellington  v.   Wentworth,  329. 
Wells  V.  Abraham.  289. 
Wells  V.   Banister,  90. 
Wells  V.  German  Co.,   191. 
Wells    V.   Hornish,   617. 
Wells  V.  Johnson,  436. 
Wells    V.    Lane,    679. 
Wells   V.    McClenning.   609. 
Wells  V.  Wilcox,  206,   579. 
Welter   v.   Jacobson,   235,   280. 
Welton    V.    Baltisore,    639,    640. 
Werner   v.   Graley,    491.   592. 
AVemple  v.  Stewart,  479. 
West    v.    Graff,   85. 
West  V.  Wentworth.  471,  515. 
Westbay  v.  Milligan,  245,  575,  662. 
Westcott  V.  Bock,  649. 
Westernberger  v.  Wheaton,  546. 
Westover  v.  Van  Doran,  588. 
Western  Stage  Co.  v.  Walke*-,  61, 

71,  317. 
West    Michigan   Bank   v.    Howard. 

74. 
Wetherbee  v.  Gree,  179,  180. 
Wetherell  v.   Spencer,  142. 
Weymouth  v.  C.  &  N.  W.  Ry.  Co., 

180. 
Whaling  v.  Shales,  351,  367,  681. 
Wheadon  v.  Sugg,  616. 
Wheat  V.   Bower,   411. 
Wheat  v.   Catterlin,   627,   630,   681. 
Wheeler  v.  Eaton,  84. 
Wheeler  v.  McCorristen,  280. 
Wheeler  v.   M'Farland,   42,  44,   48, 

49,  106,  113. 
Wheeler  v.  Paterson,  366,  404,  68S. 

689. 
Wheeler  v.  Train,  36,  106.  108,  43", 

436,  441,  442. 
Wheeler  v.  Wilkins,  353,  645. 
Wheeler  Co.  v.  Jacobs,  51,  215,  51  '. 
Wheeler  Co.  v.  Teetzlaff,  321,  341. 

344,  546. 
Wheelock  v.  Cozzens,  37,  45. 
Wheelock  v.  Wheelwright,  292. 
Whetmore  v.   Rupe.  284,  378,  641, 

655. 


TABLE  OF  CASES  CITED. 


XClll 


Whisler   v.    Reberts,    541. 

Whitaker  v.  Freeman,  604. 

Whitaker  v.  Wheeler.  247.  497. 

Whitcomb  v.  Hungerford,  126. 

White  V.   Brown,   32ii.   321. 

White  V.   Demary,  341. 

White  V.   Dolliver.   424.  425.  520. 

White  V.   Emblem,  640.   689. 

White  V.  Gainer,  345. 

White  V.  Gemeny,  253,  574,  578. 

White  V.  Graves,  197. 

White  V.  Jones.  151,  241,  627. 

White  V.  Lloyd.  561,  563. 

White   V.   Moseley,   483. 

White  V.  Phelps,   185. 

White  V.  Ross.  502. 

White  V.   Spettigue.  288.  290. 

White  V.   Suttle,  482. 

White  V.  Van  Houten,  504. 

White  V.  Webb.  495. 

White  V.  White.  530. 

White  V.  WMlks,  164. 

White  V.  Wilson.  255. 

Whitehouse  v.  Atkinson,  4G8.  481. 

497. 
Whitfield  V.  Whitfield.  35,  43.  451. 

468,  480,  510.  631.  646. 
Whitforrl    V.   Goodwin,   367. 
Whitman  v.  Kleinman,  295. 
Whitney   v.   Burnette,   127. 
Whitney  v.   Butterfield,  274. 
Whitney  v.  Hyde,  659. 
Whitney  v.  Jenkinson,  247.  350. 

351,  352. 
Whitney  v.  Ladd,  151. 
Whitney    v.    Lelimar,   505. 
Whitney  v.  iMcConnpll.  320. 
Whitnfjy  v.  S!au.sf;n.  1:53,  330.  333, 

341. 
Whitney    v.    Warner,   511. 
WhltlnRton  v.  Hearing,  280. 
Whlttaker     v.     Sanders,     189.     191, 

364.   429. 
Whittle   V.   PhfipK.   l.'.!t, 

Whitw.-ii   V.  w«-iiK,   111,  i:;t;.   i:!.'!, 

338,   341.  436.   442.   44.'.   462.   503. 
561,   5f;S,    6(15.   0)i\, 


Wickliffe  v.  Sanders,  42,  47. 
Wiggin    V.    Day,   312. 
Wiggins  V.  Snow.  214. 
Wilbraham  v.  Snow,  118. 
Wilbur   V.   Flood,   308,   540. 
Wilbur  V.  Gilmore,  649. 
Wilcoxon  V.  Annesley,  623. 
Wild  V.  Holt,  179,  180,  507. 
Wilde  V.  Rawles,  237,  268. 
Wildeman   v.   North.   565. 
Wildeman    v.   Sterritt.    171,   487. 
Wilderman   v.   Sandusky.   629. 
Wiley  V.  McGrath.  513. 
Wilhelm   v.   Scott,   587. 
Wilhite    V.    Williams.    569. 
Willard   V.   Rice.   196. 
Wilkerson   v.   McDougal,   439,   502 

566. 
Wilkins    v.    Dingley,    363. 
Wilkins   v.    Lee.   536. 
W^ilkins  v.  Treynor,  434,  454,  647 
Wilkins  v.  Wilson,  569. 
Willard  v.  Bridge,  471. 
Willard  v.  Kimball.   244,  248.  249 
Willard   v.   Rice.   173. 
Williams  v.   Archer,   451.  456.  471 
Williams  v.  Beede.  451.  565,  624. 
Williams  v.   Bugs,   73.  637. 
Williams  v.  ( 'li.ipiriaii.  ','68.  (■.")4. 
Williams  v.  Cnim.  4i;o. 
Williams    v.    Eikonberry,    285.    376 

377.  575.  661. 
Williams  v.  Given.  :iiS,  311. 
Williams   v.   Hunracr,   188. 
Williams  v.  Hoehle.  66,  461. 
Williams   v.   Ives.  487,  516. 
William.s   v.  Mathews,  578. 
Williams    v.    Merle,    290,    291,    300 

334.   335. 
Williams  V.  Morgan.  S2,  S3. 
Williams  v.  Morrison.  171,  245.254 

268. 
Williams  V.   MoHtyn.  458.  499. 
Williams    V.    I'lu'lps,   450.    455,   464 

476.  491. 
WllllamK  V.   Smith,   147.   148,   CIS 
Willlaiiis  V.   Vail.  392.  645. 


XCIV 


TABLE  OF  CASES  CITED. 


Williams  v.  Welch,  555,  076. 
Williams  v.  West,  23.  107,  109,  111, 

441.    450,    494.   54«. 
Williams  v.  Wood,  208. 
Williamson  v.  Finlayson,  255,  588. 
Williamson  v.  Gordon,  466. 
Willis  V.  DcWitt.  85. 
Willis   V.    Marks.    24. 
Wills  V.   Barrister.   312. 
Wills  V.  Noyes.  141. 
Wilson  V.  Barker,  4t),  333. 
Wilson  V.   Cook.   321. 
Wilson   V.   Fuller.   552.   550. 
Wilson  V.  Gray,  140.  154,  447.  505. 
Wilson  V.  Hughes.   582. 
Wilson   V.   Jones.   197. 
Wilson   V.   Macklin,   239.   540.   547. 

549,  550. 
Wilson   V.    Mathews.   470,  471. 
Wilson   V.   McQueen.   239,   250. 
Wilson  V.  Middleton,  511. 
Wilson  V.  Nason,  173,  291. 
Wilson   V.    Reed,   141,   521. 
Wilson  V.  Rybolt.  23. 
Wilson   V.   Royston,   108,   111,   117. 

556,  557.   605. 
Wilson  V.  Stripe,  22,  246,  250. 
Wilson  V.  Voight,  197,  198,  528. 
Wilson   V.  Williams,  273,  274,  351, 

3C1. 
Wilson   V.  Young.  512. 
Winchester  v.  Bryant.  77,  667,  685. 
Winchester  v.  Craig,  508,  509,  512. 
Windsor  v.  Boyce,  320,  325,  675. 
Wingate   v.    Smith,    173,    177,   183, 

555. 
Winnard  v.  Foster,  449. 
Winslow  V.  Leonard.  167. 
Winslow   V.    Merch.    Ins.    Co.,    159. 
Wise  V.  Grant,  59.  303.   316. 
Wise  V.  Jefferies.  51,  79,  237,  265, 

280,  285,  578,  586. 
Wise  V.  Withers,  270. 
Wiseman    v.    Lynn,    392,    395,    415, 

434. 
Wiswall  V.  Sampson,  238. 
Witham  v.  Witham,  446. 


Witkowski  v.  Hill,  660. 

Witter  V.  Fisher,  643. 

Wittick  V.  Traun,  627. 

Woglam    V.   Cowperthwaite,    6,    14, 

422,  424.  427.  611,  621. 
Wolcott  V.  Mead,  351.  360,  361,  309, 

380,  391. 
Wolf  V.  Hahn.  300. 
Wolf  V.  Meyer,  028. 
Wolf   V.    Moses,    080. 
Wolf  V.  Nicholson.  232. 
Wolfe  V.  Dorr,  159. 
Wolfe    V.    McClure,    304.    381,    383, 

385. 
Wolff  V.    Zeller.   321. 
Wolgamot  V.  Bruner.  019. 
Wood  V.  Braynard,  400,  404,  470. 
Wood  V.  Cohen,  321.  325,  333.  335. 
Wood  V.  Davis.  155. 
Wood  v.  Dudley,  185. 
Wood    V.   Hyatt,   238. 
Wood   V.   McDonald,   77,  324. 
Wood  V.  Morewood.  507. 
Wood  V.  Orser.  109,  118.  134. 
Wood  V.  Schloerb,  269. 
Wood  V.  Weimar,   193.  203,  000. 
Woodbridge    v.    DeWitt.    78,    509. 

575. 
Woodburn  v.  Chamberlin,  436,  623. 

647. 
Woodburn  v.  Cogdal.  400,  404,  465, 

408. 
Woodbury   v.   Tuttle,  251. 
Woodcroft  V.  Kynaston,  13,  14. 
Woodgate   v.    Knatchbull,  277. 
Woodruff  V.  Cook.  107.  482.  558. 
Woodruff   V.    Taylor,   247. 
Woods  V.  Kessler,  404.  665. 
Woods  V.  McCall.  491. 
Woods  V.  Nixon,  22. 
Woods  V.   Rose.   206,  328. 
Woodward   v.   Railway  Co.,  45. 
Woodward  v.  Woodward.  324. 
Woodworth    v.    Grosline,    375. 
Woolbridge  v.   Conner.   47. 
Woolridge  v.  Quinn,  389. 
Wooley  V.  Bell.  120,  584. 


TABLE  OF  CASES  CITED. 


xcv 


Woolston  V.  Sinoail,  57,074. 

Woollier  V.  Levy,  210. 

Wright  V.  Armstrong,  106. 

Wright  V.   Bennett,   43. 

Wright  V.  Briggs.  22G. 

Wright  V.  Broome,  665. 

Wright  V.   Card,  400,   402. 

Wright,  Ex  parte.  679. 

Wright  V.  Funk,   067. 

Wright  V.  Guier,   98. 

Wright  V.  Hollj'wood  Assn.,  26. 

Wright  V.  Mathews,  437,  451,  617. 

624,  647. 
Wright  V.  Quirk,  395,  402,  410,  416, 

482. 
Wright  V.  Texas  Co.,  197,  216. 
Wright  V.  Williams,  450,  451,  616, 

618. 
Wright  Works  v.  New  York  Co., 

536. 
Wyatt  V.   Freeman,    284,   339,   429, 

589,  684. 
Wyandotte  Bank  v.  Simpson,  203, 

660,  674. 
Wyer  v.  Dorchester  Bank,  589. 
Wyllie  V.  Wilkes.  396. 
Wyman  v.  Dorr.   108,  112. 
Wyman  v.  Turner,  231,  412. 


Yale  V.  Saunders,  514. 

Yale  V.  Seely,  90. 

Yallop  Co.  V.  Minneapolis  Co.,  79. 

Yandle  v.  Crane,  552. 

Yantis  V.  Burditt,  488. 

Yarborough  v.  Harper,  239. 

Yater  v.  Mullen,  93,  470. 


Yates  V.  Fassett,  12,  22,  35,  38,  4S. 

604,  609,  616. 
Yates  V.  Joyce,  102. 
Yates  V.  Russell,  679. 
Yates  V.  St.  John,  127. 
Yates  V.  Smith.  35. 
York  V.   Davis,  22. 
Yeager  v.  Wallace,  71.  322. 
Yelton  v.  Slinkhard,  377,  402,  404. 

429,   463,  486. 
Yick  Kee  v.  Dunbar,  633,  652. 
Yorke  v.  Grenaugh,  296. 
Yost  V.  Schleicher,  235. 
Youl  V.  Harbottle,  327. 
Young  V.  .Atwood,  488.  491. 
Young  V.  Carey,   546. 
Young  V.  Evans,  81. 
Young   V.   Glascock,  575,   585,   657. 
Young  V.  Herdic,  99.  181. 
Young  V.  Kimball,  119. 
Young  V.  Lego.  G33,  676. 
Young  V.   l.loyd,  509. 
Young  V.  Mason,  383. 
Young  V.   .Miles,   172.    176. 
Young  V.  Parsons,  630. 
Young  V.  Spencer.  458. 
Young  V.  Willet.  456.  463,  482. 
Young  V.  Wise,  271. 
Younglove  v.  Knox,  573,  585,  591, 

599. 


Zachary  v.  Pace,  344. 
Zachrisson  v.  Ahnian.  325. 
Zeilke   v.  Morgan.    171.  251. 
Zeisler   v.    Bingman,    75.   574,   ti71. 


THE 


LAW    OF    REPLEVIN. 


CHAPTER  I. 


HISTORICAL  INTRODUCTION. 


Origin  of  replevin  unknown     . 

First  appearance  as  part  of  tlie 
lex  scn'pta        .... 

Its  prior  existence  apparent 

Tlie  Statute  of  Marlbridge 

Originally  an  action  to  test  the 
legality  of  a  distress 

Distress 

Usually  for  rent 

Distress  could  not  be  sold 

Abuses  of  the  right  of  distress  . 

Replevin  defined 

Tlie  writ  not  return:ible,  but 
gave  the  sheriff  power  to  try 
the  case 

If  the  defendant  claimed  to  own 
the  property,  the  sheriff  could 
not  proceed       .         .         .         .12 

Alius  and  pluries  writs  and  the 
practice— jj/urie«  always  re- 
turnable— tlie  reason  therefor 

Cattle  driven  within  a  liberty — 
the  writ  won  muittim 

The  writ  issued  only  at  West- 
minster    ..... 


11 


Section.  Section. 

1       Delay  in  issuing  the  writ  occa- 
sioned thereby 

Replevin  by  plaint.  Sheriff  au- 
thorized to  proceed  without 
writ 

Proceeding  in  case  of  resistance 

In  case  of  no  resistance 

Ancient  method  of  trial     . 

Both  parties  actors  or  plaintiffs 

Avowry  and  cognizance    . 

These  justified  the  taking , 

Removal  of  the  case  to  the  court 
of  King's  Bench 

The  writ  of  witln  i)ntiii,  or 
"  other  distress  "     . 

Defects  in  tlie  Statute  of  Marl- 
bridge       ..... 

Tlic  statute  of  Westniiiist.T.  Tlie 
writ  of  second  ijejiveranceund 
the  first  aiijx'arance  of  the 
Im.ikI '21 

Statute  Charles  II.      .  .     'JM 

14  i   Statute  CJeorge  II.       .  .     ','« 
I   Conclusion            ....     MO 

15  I 


13 


16 


•2t) 


§  1.  Origin  of  replevin  unknown.  Kt'iilcvin  wa.s  ainoiif;  tlu? 
earliest  rcincdics  j^ivcti  by  the  conMiioii  law.  Us  orifjin  unt^'rlaU'S 
its  written   hisUiry   an  uiikiiowu   iM-riod,  and,   like   tlie  ori^'in  of 

I 


2  THE    LAW    OF    REPLEVIN. 

the  common  law,  of  wliich  it  forms  i)art,  it  can  onlj'  l)e  said  to 
come  from  an  age  in  which  all  our  laws  existed  simjjly  in  tradition. 
Glanvil,  the  earliest  writer  on  the  laws  of  England,  gives  the  writ  as 
it  was  in  his  time,  and  as  it  must  have  existed  ])efore.  Blackstone 
speaks  of  the  action  as  "an  institution  which  the  IVIirror  ascrihes 
to  Glanvil."'  Tlie  passage  referred  to  by  the  learned  author 
does  not  wholly  justify  the  statement.^  It  would  seem  ])robable 
that  Glanvil  was  the  author  of  .^ome  regulation  which  afterward 
took  form  in  the  statute  of  ]Marlbridge  ;  but  the  statute  was  not 
enacted  until  nearly  eighty  years  after  his  death.  Judges  of  that 
period  were  arbitrary  in  the  exercise  of  their  power,  but  Glanvil 
makes  no  claim  to  having  originated  this  action  ;  he  simply  wrote 
of  the  laws  as  they  then  existed.'  The  writ  was  certainly  one  of 
the  earliest,  and  may  have  been  in  existence  before  the  chancery 
was  known.* 

§2.  Its  first  appearance  as  part  of  the  lex  scripta.  It 
makes  its  first  appearance  as  a  part  of  the  lex  scripf((  in  the  statute 
of  Marlbridge,  52  Henry  III.,  A.  D.  1267.  The  twenty-first  chap- 
ter of  this  statute  is  on  the  sul)ject  of  replevin,  while  other  chap- 

'  3  Blackstone,  146. 

*  The  full  text  of  the  Mirror  referred  to  by  Blackstone  is  as  follows: 
"  If  any  be  wrongfully  distrained,  ye  are  to  distinguish  whether  it  be 
by  those  who  have  the  power  to  distrain,  or  by  others;  and  if  by  others, 
then  lieth  an  appeal  of  robbery,  whereof  Hailif  gave  a  notable  judg- 
ment; and  if  by  those  who  may  distrain,  then  they  ought  to  deliver  the 
distress  by  gage  and  pledges:  And  if  the  distrainer  and  the  plaintiff 
of  the  distress  lead  it  away,  then  the  connisance  thereof  doth  belong  to 
the  King's  Court,  and  so  there  is  a  remedy  by  a  writ  of  replegari  facias. 
Nevertheless,  for  the  releasing  of  such  distress,  and  for  the  hastening 
of  the  right,  Rudolph  de  Glanvil  ordained  that  sheriffs  and  hundredors 
should  take  securities  to  pursue  the  plaints,  and  should  deliver  the  dis- 
tresses, and  should  hear  and  determine  the  plaints  of  tortious  dis- 
tresses, saving  to  the  king  the  suit  as  to  leading,"  etc.  Mirror  of  the 
Justices,  Ch.  2,  §  26. 

^  He  says,  in  his  preface:  "The  laws  of  England,  though  not  written, 
may,  without  impropriety,  be  termed  laws.  *  *  *  There  are  some 
well  established  rules  which,  as  they  more  frequently  arise  in  court, 
it  appears  to  me  not  to  be  presumptuous  to  put  into  writing." 

*  See  preface  to  8th  Vol.  Coke's  Reports,  p.  17.  Herteford,  a  learned 
sergeant  in  the  time  of  Edward  I.,  mentions  several  writs  which  he 
thinks  were  invented  before  the  chancery  was  known.  Year  Book,  30, 
31,  Edward  L,  276.  The  chancery  was  an  office  for  issuing  writs  long 
before  it  acquired  jurisdiction  as  a  court.  Lives  of  the  Chancellors, 
Vol.  1,  p.  2,  et  seq.;  Story's  Eq.  .Jurisp.,  Vol.  1,  Ch.  2. 


HISTORICAL    INTRODUCTION.  3 

ters  relate  to  the  subject  of  distress,  which,  as  will  appear,  was 
closely  allied  to  rcpk-vin  in  the  ancient  law.^ 

§  3.  Its  prior  existence  apparent.  From  this  statute  it 
clearly  appears  that  prior  to  its  enactment  the  action  was  in  gen- 
eral and  frequent  use ;  that  it  had  grown  into  a  well  defined  pro- 
ceeding, witli  established  forms,  rules  and  precedents  too  strongly 
fixed  to  be  disregarded  or  avoided  It  may  also  be  inferred  from 
the  statute  that  the  defects  and  inadequacies  in  prior  laws  were 
of  such  magnitude,  and  tlie  inconveniences  resulting  therefrom 
were  so  general  as  to  demand  an  act  of  Parliament  for  their  cor- 
rection at  a  time  when  acts  of  Parliament,  especially  such  as 
might  operate  in  favor  of  the  tenant  and  against  the  lord,  were 
of  rare  occurrence.® 

§  4.  The  origin  of  the  statute  of  Marlbridge.  Tlie  con- 
tests which  arose  between  the  king  and  the  nobles,  called  tlie 
wars  of  the  barons,  and  which  came  to  a  close  in  the  reign  of 
Henry  III.,  rendered  England  a  scene  of  the  greatest  turbulence. 
In  this  conflict  the  people,  alternately  courted  by  both  parties, 
became  more  and  more  sensible  of  their  rights  and  their  impor- 
tance, and  out  of  these  influences  the  statute  of  Marlbridge,  among 
others,  came  to  be  enacted.' 

§  ').  Originally  it  was  an  action  to  recover  chattels 
wrongfully  taken  or  wrongfully  detained.  I'>y  the  ancient 
law  replevin  was  an  action  to  recover  chattels  wrongfully  taken 
or  wrongfully  detained.  "The  substance  of  this  plea,"  say  l>i  it- 
ton,  "  consists  of  two  things,  to- wit :  the  taking  and  the  detaining, 
*  ♦  *  and  because  he  who  wrongfully  detains  docs  a  greater  in- 
jury than  he  who  wrongfully  takes,  the   principal  burden  of  the 


"Replevin  was  treated  of  under  the  title  of  distress,  by  all  the  old 
authors.  Britton,  Vol.  1,  Ch.  28;  Fleta  Minor.  Ch.  2,  §  2G;  Gilbert,  in 
bis  work  on  Replevin,  and  many  other  writers. 

'Post,  fi  'J,  note. 

'  DeLolme,  on  the  Constitution  of  England,  p.  IfJG.  This  statute,  (so 
called  from  Marlborough,  in  Wiltshire,  where  King  lU-nry  III.  held  ii 
Parliament  In  November,  1267.)  has  ever  been  regarded  as  one  of  tho 
charters  of  English  IlbertieH.  Chapter  fj  contains  a  ri'  afflrniance  of  th« 
firKt  great  f:hart«'r  of  Henry  III.;  and  the  nanii-  Mai/un  Charta,  which  It 
has  ever  since  retained,  was  drat  given  to  il  in  this  chuptt'r.  Tlionip 
son's  Essay  on  Magna  ('harta,  p.  'JHI.  No  oniclal  record  of  this  statute 
iH  itnowri  to  exist.  It  is  one  of  the  ancient  statutes.  See  j)reface  to 
Statutes  at  Large. 


4  THE    LAW    OF    REPLEVIN. 

answer  shall  fall  on  the  detainers."  "  There  is  nothing  in  the 
writ,  even  in  its  earliest  form,  which  would  necessarily  confine  it 
to  the  recovery  of  distresses  ;"  but  by  the  connnon  law  the  action 
was,  without  doubt,  practically  limited  to  the  recovery  of  distresses 
wrongfully  taken  and  detained.'" 

§  0.  Distresses.  Distress  was  the  taking  of  a  i)ersonal 
chattel  out  of  the  possession  of  an  alleg(Ml  wrong-doer,  by  the 
person  claiming  to  be  injured,  into  his  own  custody  to  compel 
satisfaction  for  the  wrong  complained  of."  This  taking  doubtless 
originated  in  the  rough  exercise  of  pure  force,  for  wliicli  the  will 
of  the  taker  was  the  sole  warrant.  The  written  history  of  the 
law  is  not  explicit  on  this  subject,  but  enough  remains  to  justify 
the  belief  that  before  the  law  had  attained  vigor  enough  to  en- 
force its  mandates,  or  compel  that  respect  -which  is  yielded  to 
superior  power,  rude  men  emjjloyed  their  own  individual  force, 
and  indemnified  themselves  for  any  real  or  supposed  injury  or 
default  of  another,  by  seizing  from  their  adversary  enough  of  his 
movables  to  satisfy  or  compensate  them  for  their  supposed  loss.'- 
The  possession  of  sufficient  force  being  the  only  pre-requisite 
to  the  seizure,  of  course  such  a  taking  would  be  stoutly  resisted 
l)y  an}''  person  who  deemed  himself  able  to  make  his  resistance 
successful,  or  a  recaption,  or  ample  reprisals  would  be  made  at 
the  earliest  moment  the  party  was  prepared  to  do  so.''^  Serious 
contests,  long  and  bitter  feuds  and  bloodshed  were  the  common 
results.     In  process  of  time,  as  society  began  to  grow  stronger, 

«Britton,  translated  by  Nichols,  Vol.  L  Chap.  XXVIII.;  F.  N.  B.  68, 
and  following. 

"  The  writ  given  by  Glanvil  is  almost  identical  with  the  later  writ. 
See  §  11,  note.  Wilks.  on  Rep.  2.  Two  things  fall  in  these  plaints  of 
taking  and  detaining,  whereof  there  are  four  degrees:  1st.  When  the 
taking  Is  justifiable  for  lawful,  etc.,  and  the  detaining  also,  as  for  a 
debt  due,  or  a  debt  recovered.  2d.  Where  both  are  wrongful,  such  as 
are  disavowable  both  in  taking  an  detaining.  3d.  Where  the  taking  is 
lawful,  as  in  damage  feasant  and  the  taking  tortious  as  against  suffi- 
cient gages  and  pledges  tendered.     Mirror  of  .lustices,  Ch.  2,  §  26. 

"See  post  Chap.  2. 

"3  Blackstone,  6;  Gilbert  on  Distresses,  4;  Anon  Dyer,  280;  Bradby 
on  Distresses,  p.  1,  and  following. 

"Distresses  are  called  Revenges  in  Stat.  Marlbridge,  52;  H.  III.  Chap. 
1  and  3,  A.  D.  1267. 

"  This  afterwards  came  to  be  called  brevia  manu,  "  writs  of  hand." 
Historical  Law  Tracts  published  by  Miller,  (London,  1745,)  289. 


HISTORICAL    INTRODUCTION.  5 

and  the  public  safety  to  forbid  such  contests,  custom  and  hiw 
began  to  have  force;  the  taking,  thougli  still  permitted,  was 
hedged  in  by  certain  rules ;  resistance  or  recaption  was  forbidden 
unless,  as  was  grimly  said,  the  taking  was  wrongful ;  the  thing 
taken  came  to  be  regarded  in  the  light  of  a  pledge  or  security,  to 
be  returned  when  satisfaction  was  made ;  and  replevin  grew  and 
became  a  legal  proceeding  by  which  a  person  might  recover  his 
property  wrongfully  taken  or  wrongfully  detained  from  him  by 
distress.'* 

§  T.  Usually  for  rent.  The  injury  for  which  distress  was 
most  usually  permitted  was  the  non-payment  of  rent  onlues  by  a 
tenant  to  his  lord.  If  the  tenant  failed  in  tlie  payment  of  his 
rent,  or  refused  to  perform  the  service  which  his  feudal  contract 
bound  him  to  do,  the  lord  would  seize  his  goods,  (usually  cattle,) 
and  det{iin  them  as  a  pledge  or  security  to  compel  payment  or 
performance.'*  The  thing  taken,  as  well  as  the  process  by  which 
it  was  taken,  was  called  a  distress.'® 

§  8.  Could  not  be  sold.  Prior  to  the  statute,  2  W.  &  M.  Ch. 
5,  a  distress,  unless  for  dues  to  the  King,  could  not  be  sold,  and  so 

"Mathews  v.  Carey,  3  Mod.  137;  Anon  Dyer,  280;  3  Blackstone,  b. 
et  seq.     145,  et  seq :  Year  Books  Passim. 

"3  Blackstone,  145,  et  seq.:  F.  N.  B.  68;  Evans  v.  Brander,  2  H.  Bla. 
547.  [If  the  defendant  retain  the  goods  and  this  appear  by  the  plead- 
ings judgment  must  inevitably  go  against  him;  or  if  there  be  a  verdict 
in  his  favor  judgment  will  go  non  obstante.  Cassidy  v.  Elias,  90  Pa. 
St..  434. 

Distress  of  a  house  of  the  tenant  on  the  demised  premises,  no  posses- 
sion being  taken,  but  the  tenant  left  with  his  family  In  the  occupancy 
of  the  house,  amounts  to  nothing.    Johnson  v.  Prussing.  4  Ills.  A|)..  575. 

Animals  distrained  for  rent  may  be  left  by  the  landlord  with  the 
tenant  for  a  reasonable  time  without  loss  of  the  lion.  La  Motto  i. 
Wisner,  51  Md.  543. 

But  if  the  landlord  leave  them  an  unreasonable  time,  and  thoy  are 
sold  to  a  purohaser  bona  fide,  the  landlord's  right  Is  lost.     Id. 

From  January  26  to  May  1  following,  was  hold  an  unreasonable  thn«'. 
Id. 

There  may  be  a  constructive  taking  sufficient  to  hold  the  distress, 
Robelen  v.   National  Hank,  1  .Marv.,  346.  41  All..  S(». 

An  oxcTutlon  or  attaclinunt  levied,  or  doed  of  assignment  recorded. 
In  advance  of  the  actual  levy  of  a  dlBtrosK  w.-irraiil,  lakoH  procedtMX  ir 
thereof.    Rowland  v.  Hewitt,  ]'.>  Ills.  Ap..  4.'.0.1 

'*3  UlackHtono.  6.  DlHlrcfHscK  wore  usually  tin-  cattle  of  the  debtor. 
The  term  cattle  included  horscH,  down  to  (julto  u  lato  period  — Mncaul.iy'H 
HlHt.  Vol.  1.  p.  294 — and  originally  wuh  synonyniouH  with  cluiitrl 


6  TH1<:    LAW    OF    REPLEVIN. 

was  no  payment  or  satisfaction  to  tlie  distrainor  ;  it  conld  be  held 
as  a  pledge  or  security  only.  The  distrainor  niiglit  iiupomul  the 
cattle  in  pound  overt  to  be  fed  by  the  owner,  and  at  the  o\\  ner's 
risk  in  case  they  died,''  and  so  pain  or  distress  him  until  he  should 
perform  the  service,  or  discharge  his  cattle  by  payment  of  the 
sum  for  which  they  weic  distrained. 

§  9.  Abuses  of  the  right  of  distress,  (^ross  abuses  grew 
out  of  the  exercise  of  this  right  of  distress.  In  the  wars  of  the 
barons  each  was  anxious  to  appear  at  tlie  head  of  the  largest  body 
of  vassals.  Distresses  were  frequently  made  to  comi)el  the  tenant 
to  perform  military  service  not  due,  or  to  perform  service  which 
he  was  not  bound  to  perform  under  his  tenure.  AVhen  neigh- 
boring lords  were  seeking  to  enlarge  their  domains,  the  tenants 
were  frequently  distrained  upon  by  both.  The  husbandry  of  the 
realm,  then  its  only  support,  was  greatly  injured,  and  the  public 
peace  disturbed.  In  the  latter  part  of  the  reign  of  Henry  HI. 
laws  were  enacted  regulating  distress  and  enlarging  and  simpli- 
fying the  remedies  for  illegal  distresses,'^  and  it  was  from  one  of 
these  acts,  that  is  the  twenty-first  chapter  of  the  Statute  of  Marl- 
bridge,  that  the  action  of  replevin  received  its  principal  impetus. 

§  10.  Replevin  defined.  To  replevy,  as  its  name  {reiilegiare 
— to  take  back  the  i)ledge,)  indicates,  is  when  the  person  distrained 
upon  applies  to  the  proper  oflBcer,  and  has  his  distress  returned  to 
him  upon  giving  security  to  try  the  right  of  taking  or  distraining 
in  an  action  at  law."  The  writ  did  not  contain  a  sunnnons  to  the 
defendant,  and  was  not  returnable  to  any  superior  court,  but 
commanded  the  sheriff  to  see  justice  done  between  the  parties. 
The  sherifl:,  by  the  writ,  was  authorized  to  act  as  the  judge.  In 
this  the  writ  differed  from  ordinary  writs,  in  which  the  sheriff" 
acted  in  his  ministerial  capacity.-" 

'"Gilbert  on  Distresses,  4;  Anon  Dyer,  280  Z>;  3  Blaclistone,  14-145, 
et  seq.;  Woglam  v.  Cowperthwaite,  2  Dall.  68;  King  v.  Blackmore,  72 
Pa.  St.  347.  In  this  country  it  is  the  duty  of  the  party  impounding 
cattle  to  feed  them.    Adams  v.  Adams,  13  Pick.  385. 

"Statute  de  Districtione  Scaccarii,  51  Henry  IIL  1266;  Statute  Marl. 
52,  Henry  IIL  C.  1,  A.  D.  1267;  Reeves'  Hist.  Vol.  2,  p.  66;  Gilbert  on 
Distresses,  3;  3  Blackstone,  14-146. 

"3  Blackstone  Com.  13;  Co.  Litt.  145  b.  Vetitum  namium  (forbidden 
pledge,)  as  it  was  anciently  called,  was  when  the  bailiff  of  the  lord  dis- 
trained and  the  lord  forbiddeth  the  sheriff  to  deliver  the  distress  when 
the  sheriff  cometh  to  deliver  it.  2  Inst.  140;  Gilbert  on  R.  79.  Spelm. 
Law  Gloss. 

"Fitz  N.  B.  86;  3  Blackstone,  146,  147;  Weaver  v.  Lawrence,  1  Dall. 
156. 


HISTORICAL    IXTRODUCTIOX.  7 

§  11.  The  writ  was  not  returnable,  but  gave  the  sheriff 
power  to  try  the  case.  Prior  to  the  enac-tiiu'iit  of  the  Statute 
of  Marlbridge  the  proceeding  was  coinmeneed  by  writ  issuing  out 
of  chancery.-'  It  was  a  judicial  writ ;  so  called  l>ecause  it  gave 
the  sheriff  power  to  hear  and  determine  the  matter  complained 
of." 

§  12.  If  the  defendant  claimed  to  own  the  property,  the 
sheriff  could  not  proceed.  If  the  defendant  claimed  to  own 
the  property,  the  sheriff  could  proceed  no  further  with  the 
replevin.  The  writ  was  framed  to  try  the  question  of  caption  or 
detention  only,  and  not  the  title  to  the  property  ;  butthe  phiintiff 
might  sue  in  an  appeal  of  felony,  and  if  he  was  successful  he  got 
his  goods,  and  the  taker  was  regarded  as  a  robber,  and  was 
hanged."  Subsequently,  when  the  property  was  so  claimed  by 
the  defendant,  the  writ  de  proprietate  probanda  was  sued  out  to 
settle  the  question  of  ownership,  and  that  was  hrst  determined. 
For  the  defendant  to  claim  that  he  owned  the  goods,  on  the  trial 
of  the  suit,  was  unheard  of  in  early  cases." 

"  The  form  of  the  writ  was  as  follows: 
"  TiiK  King,  etc.,  to  the  Sheriff,  etc.: 

•'  We  command  you,  that  justly,  and  without  delay,  you  cause  lo  be 
replevied  the  cattle  of  B.,  which  D.  took  and  unjustly  detains,  as  it  is 
said,  and  afterwards  thereupon  cause  him  justly  to  be  removed,  that 
we  may  hear  no  more  clamour  thereupon  for  want  of  justice,"  etc. 

"  Pledges — " 

Fitz  N.  B.,  68  D.  The  writ  given  by  Glanvil  is  substantially  the 
same.    Glanvil,  Beam's  Trans.  294. 

**  Gilbert,  Blackstone,  and  other  writers,  speak  of  such  writs  as 
vicontiel — not  being  returnable,  but  commanding  the  sheriff  vin- 
comite,  to  see  justice  done.  Such  writs  were  common  in  the  early 
history  of  the  law.  Gilbert  on  Rei)levin,  .09;  3  Blat-kstone,  2;5S.  The 
\atura  Brevium  contains  many  such  writs.  Fitz  N.  B.  passim  ;  Glanvil. 
Book  12.  Ch.  12;  Crabb's  Hi.st.  Eng.  Law,  IIG. 

"Britton,  Vol.  1,  Ch.  28;  Mirror.  Ch.  2.  S  20,  cited  atiti'.  «  1.  note  1; 
Ex  parte  Chamberlain,  1  Scho.  &  Let.  320,  note.  This  appeal  was  madf 
as  follows:  John,  who  is  here,  appeals  Peter,  who  Is  there,  that,  where- 
as, the  same  John,  on  such  a  day,  and  had  a  horse  which  he  kept  In 
his  stable.  The  same  Peti'r  there  came,  and  the  same  horse  feloniouHly, 
as  a  felon,  stole  from  him.  and  took  and  led  away,  aKainst  the  peace, 
and  that  this  he  wickedly  did  tin-  same  .John  offers  to  prove  by  his 
body,  as  the  court  Khali  award  that  1m>  ou^ht  to  do  It.  Brittoii.  Vol.  1. 
p.    IIG. 

"Gilbert  on  Replevin.  9S;   3  Blackstone  Com.   MS;    Shaniioti   r    Shan 
non,  1  Scho.  &  Lef.  327;   Leonard  v.  Stacy.  6  Mod.  Ho      If  the  HhtTlff 


8  THE    LAW    OF    REPLEVIN. 

§  IH.  Alias  and  pluries  writs,  and  the  practice.  Pluries 
always  returnable.  The  reason  therefor.  If  the  sheriff 
failed  to  serve  the  tirst  writ,  the  })l:vintilf  was  entitled  to  an  alias^ 
and  then  to  a  plurus.  In  practice,  however,  it  hecame  usual  for 
the  i)laiutiff  to  take  all  tiircc,  the  writ,  the  «//f/.s- and  the  pluries 
at  one  time."  And  he  might  deliver  all  these  writs  to  the  sheriff  ;  '■"' 
or  he  might  deliver  the  alias  ov  jduries  oidy,  as  he  saw  tit.-'  'i'he 
original,  as  has  been  said,  and  the  alias  were  not  returnable,  but 
the  pluries  always  contained  the  clatise  velcausam  yiobis  certijiccs, 
etc.,  or  certify  to  us  the  reason  why,  etc.  This  writ  was  always 
returnable,  the  sheriff  being  therein  connnanded  to  certify  the 
reason  why  he  could  not,  or  would  not,  execute  the  connnand  of 
the  former  writs.  The  reason,  as  stated  by  Gilbert,  being,  the 
sherill",  having  twice  failed  in  his  duty,  (in  not  returning  the 
original  and  alias,)  was  not  further  to  be  trusted  with  judicial 
power,  and  as  he  is  answ^erable  to  the  court  how  he  has  obeyed 
the  command  of  the  writ,  the  court  must  have  it,  to  see  whether 
he  has  done  his  duty  or  not.  If  he  had  failed,  he  was  fined  for 
disobedience."  If,  however,  the  sheriff"  had  had  no  other  writ 
than  the  pluries  delivered  to  him,  he  might  make  return  of  that 
fact,  and  so  excuse  himself,  for  supposed  neglect  of  duty.-^ 

§  14.  Cattledriven  within  a  liberty— the  writ  nonomittas. 
If  the  sheriff's  return  to  the  writ  showed  that  the  cattle  were 
driven  within  some  liberty,  and  that  the  bailiff  of  the  liberty 
made  no  answer  to  his  demand  for  them,  the  plaintiff  might  have 
an  alias  ov  phones  non  omittas.  This  authorized  the  sheriff"  to 
enter  the  liberty  or  franchise  and  deliver  the  plaintiff's  beasts.''" 

took  the  property  after  a  claim  of  ownership  by  the  defendant,  he  was 
a  trespasser  ab  initio.  "  In  replevin,  the  defendant  said  he  had  prop- 
erty in  the  beasts  ahsegue  hoc;  that  the  property  was  in  the  plaintiff, 
and  prayed  judgment,  and  it  was  found  for  the  plaintiff.  Sergeant 
Harvey  moved  in  arrest  of  judgment,  for  in  no  book  was  found  such  a 
traverse  as  this;  Hutton,  .Justice,  said  this  was  never  seen  by  him,  and 
they  all  agreed  that  judgment  shall  be  for  the  plaintiff."  Anon  Winch, 
26;  Weaver  v.  Lawrence,  1  Dall.  156. 

"F.  N.  B.  68  E.;  Gilbert  on  Replevin,  7.5. 

^"'F.  N.  B.  68  E. 

"Gilbert  on  Replevin,  75;  Anon  Dyer,  189a;  F.  X.  B.  68;  Thomas,  of 
Matyshale,  v.  The  Abbot  of  Cirencester,  Year  Book,  30  E.  1,  18.  See 
this  case  post.  §  25,  note. 

''Gilbert  on  Replevin,  77;  F.  N.  B.  68;  Freeman  v.  Bluet,  12  Mod.  395. 

"Gilbert  on  Replevin,  76,  et  seq. 

'"Gilbert  on  Replevin,  69  et  seq.     See  j)ost.  8  23,  note.     F.  N.  B.  68. 


HISTORICAL    INTRODUCTION.  9 

The  clause  which  sometimes  appears  in  our  writs  of  the  prescm. 
day,  "  and  this  you  are  not  to  omit,  under  the  penalty  of  the  law,'* 
though  now  nothing  more  than  a  rather  sonorous  foi-m,  was  once 
a  special  and  highly  essential  part  of  the  writ,"  withnut  whicli  it 
would  have  been  useless. - 

§  15.  The  writ  issued  only  at  Westminster.  The  writ  of 
replevin,  like  all  otlier  original  writs,  could  only  issue  out  of 
chancery  at  Westminster,  the  King's  chancellor  being  the  only 
oflScer  in  the  kingdom  who  could  issue  such  writs,  and  West- 
minster was  the  only  chancery  office  or  place  whence  they  could 
issue  .'^ 

§  10.  Delay  in  the  issuing  of  the  writ  occasioned  there- 
by. Westminster  was  several  days'  jouniey  from  the  ex- 
tremities of  the  kingdom.  A  journey  from  London  to  New  Castle 
by  land  probably  occupied  as  much  time  then  as  a  journey  from 
New  York  to  San  Francisco  would  now.  Something  like  it  oc- 
curred in  the  early  history  of  Illinoi.s,  when  a  court  at  Kaskaskia 
sent  its  writs  to  ^Milwaukee.  The  dela}'  wliich  this  occasioned  was 
a  serious  hardship  to  the  tenant,  who  Avas  compelled  to  feed  liis 
beasts  until  a  writ  could  be  obtained  without  having  the  use  of 
them.  It  was,  moreover,  a  great  detriment  to  the  husbandry  of 
the  realm,  and  in  those  days  agriculture  was  the  sole  siii)port  of 
the  nation.''* 

§  17.  Replevin  by  "plaint,"  sheriff  authorized  to  pro- 
ceed without  writ.  To  remedy  this  the  Statute  ot'  .Marlluidge 
was  enacted.  This  statute,  as  Ijefore  remarked,  was  one  of  the 
most  important  in  English  history,  and  without  doubt  tlie  Chapter 
on  Keplevin  had  as   marked,  lasting  and   beneticial  efVei-t  on  the 

"Gilbert's  History  and  Pradice  of  the  Court  of  Common  Tleas,  2C 
€t  seq.    See  post,  §  23  Note. 

"Reeve's  Hist.  Ch.  10,  p.  93.    (Finlason's  Ed.) 

°3  Blaokstone,  .'jO  lb.  273;  History  and  Practice  of  tbc  Court  of  Com- 
mon ploas,  15  et  seq.  The  mode  of  comniencinK  a  civil  suit  in  the  loinn 
of  Henry  III.,  as  well  as  in  earlier  and  subso(iucnt  times,  was  by  the 
purchase  of  a  writ.  Writs,  when  Issued,  were  sent  by  tho  hands  of 
messengers  who  traveled  through  the  kingdom  and  dollveretl  them  to 
the  Bherlffs  of  the  counties  to  be  served  on  defendants.  Horwood  in 
his  i)refa«re  to  the  Year  Book.  30.  31,  E.  I.  p.  L'l;.  .Macauluy's  History  of 
England,  Vol.  1,  p.  347.  contains  a  description  of  tlie  romls  and  difll 
culties  of  travel  four  htindrccl  years  later.  In  1700  York  was  a  week 
distant  from  I>nidori.     Lives  of  the  Engineers,  p.  23. 

"History  of  England;   I'ottcr  v.  Hall.  H  !'h  U    .{OS. 


% 


10  THE    LAW    OF    REPLEVIN. 

la^^'^s  of  Great  Britain  as  any  other  chapter  ever  enacted.  This 
chapter  (Ch.  21,)  gave  the  sheriff  power,  upon  complaint  made  to 
him,  without  any  writ  or  process  from  any  superior,  to  deliver  to 
the  plaintilf  his  cattle  ;  or  if  they  were  taken  within  any  liberty, 
the  sheriff  might  at  once  enter  the  liberty  to  make  replevin.  In 
other  words,  this  chapter  operated  like  a  general  continuing  writ 
of  replevin  available  for  all  persons  in  all  cases,  or  it  saved  the 
necessity  for  any  writ,  and  by  virtue  of  its  provisions  the  sheriff, 
upon  complaint  made  to  him,  might,  ui)on  his  own  authority, 
either  by  word,  (for  frequently  the  sheriff  of  those  days  could  not 
write,)  or  by  precept  to  his  bailiff,  replevy  the  plaintiff's  goods.*^ 
After  the  adoption  of  this  statute  the  writ  gradually  fell  into 
disuse,  and  has  long  since  become  obsolete  in  England.  Its  use 
was  continued  in  Ireland  some  years  later. 

§  18.  Proceeding  in  case  of  resistance.  Proceedings  under 
this  statute  were  called  "  Proceedings  by  Plaint."  The  sheriff, 
upon  plaint,  (i.  e.  complaint,)  made  to  him  ^*  went  in  person,  or 
sent  one  of  his  bailiffs,  to  the  place  wiiere  the  cattle  were  detained 
and  demanded  sight  of  them.^'     If  this  were  denied  he  might 

"Ch.  21,  Statute  Marl.  52  Henry  IIL  A.  D.  1267,  is  as  follows:  "  It  is 
provided,  also,  that  if  the  beasts  of  any  man  be  taken  and  wrongfully 
withholden  the  sheriff,  after  complaint  made  to  him  thereof,  may  de- 
liver them  without  let  or  gainsaying  of  him  that  took  the  beasts,  if  they 
were  taken  out  of  liberties;  and  if  the  beasts  were  taken  within  any 
liberties,  and  the  bailiff  of  the  liberty  will  not  deliver  them,  then  the 
sheriff,  for  default  of  those  bailiffs,  shall  cause  them  to  be  delivered." 

These  liberties  were  estates,  baronys,  towns  or  monasteries,  etc.,  in 
which  the  lord  claimed  jurisdiction  to  the  exclusion  of  the  King's  ordi- 
nary writ,  the  right  proceeding  frequently  from  a  grant  from  the  King, 
or  immemorial  custom.  Gilbert's  Hist.  Com.  Pleas,  p.  25;  Macaulay's 
Hist.  Eng.  (Library  Ed.)  Vol.  1,  p.  338.  See,  also,  Ch.  16  and  22  to  25 
Fortunes  of  Nigel,  for  Scott's  highly  dramatic  account  of  the  immuni- 
ties of  Whitefriars,  the  most  famous  of  the  many  liberties  of  the 
kingdom. 

'"  The  affidavit  of  modern  practice  is  the  "  plaint "  of  ancient  practice. 
Anderson  v.  Hapler,  34  111.  436. 

"Reeve's  Hist.  Vol.  2,  p.  48.  It  is  probable  that  the  sheriff  never 
served  such  process  in  person,  but  that  he  always  sent  one  of  his  depu- 
ties. Ackworth  v.  Kempe  Douglass,  40;  Blackwell  v.  Hunt,  Noy,  107. 
Perhaps  the  sheriff  executed  the  writ  in  person,  and  sent  his  bailiff 
when  the  suit  was  begun  by  plaint.  Gilbert  on  Replevin,  67.  The 
statute.  1  and  2  P.  &  M.  Ch.  12,  §  3,  required  the  sheriffs  to  have  at 
least  four  bailiffs  in  each  county  for  the  sole  purpose  of  making  re- 
plevin. 


HISTORICAL    INTRODUCTION.  11 

raise  the  hue  and  cry  ;  or  iu  case  of  resistance  apprehend  the 
offender  and  put  him  in  jail.'*  If  the  distress  had  been  driven 
into  a  castle  or  other  stronghold  the  sheriff,  after  demand,  might 
break  it  open  to  enable  him  to  deliver  them.'"  The  connnon  law 
privilege  which  was  accorded  to  a  man's  house  or  cattle  would 
protect  himself  or  family  from  arrest,  or  his  goods  from  seizure 
on  a  civil  process,  but  could  not  protect  or  privilege  him  to  keep 
the  goods  of  another  person  unjustly  taken  so  as  to  prevent 
service  of  the  replevin.*"  The  practice  of  driving  distresses  into 
strongholds  was  so  frequent  in  the  wars  of  the  barons,  and  the 
poorer  men  suffered  so  much,  that  the  Statute  of  West.  1.  Ch.  17 
was  enacted  expressly  giving  the  sheriff  power,  after  demand  made, 
to  break  into  a  house,  castle,  or  other  stronghold,  to  make  replevin 
of  goods.  This  statute  further  to  deter  lords  from  refusing  to 
deliver  distresses  to  the  sheriff  on  replevin,  provided  that  the 
house  or  castle  so  used  should  be  razed  and  destroyed.  This, 
however,  could  not  be  done  without  the  King's  writ  after  a  fair 
trial. 

§19.  In  case  of  no  resistance.  If  no  opposition  was  made 
to  the  sheriff  he  would  immediately,  on  sight  of  the  beasts,  deliver 
them  to  the  plaintiff"  and  then  give  the  parties  a  day  in  which  to 
appear  in  the  county  court  and  try  the  matter.*' 

§20.  Ancient  method  of  trial.  The  manner  of  trying  the 
case  anciently  was  for  the  plaintiff'  to  have  his  suitors,  »'.  e. 
witnesses,  ready  to  prove  he  had  offered  the  lord  a  pledge,  or 
security,  under  the  impression  that  that  was  sufficient,  and  that 
the  lord  had  no  riglit  to  seize  or  distrain  pledges  wIumi  sutficient 
pledges  had  been  tendered  him.*-     The  form  of  the  writ  and  dec- 

"  Reeve's  Hist.  Vol.  2.  p.  48;  Britton.  Vol.  1,  p.  137. 

"This  is  the  statute  law  in  several  of  the  States  to-day. 

"Gilbert  on  Replevin,  p.  70. 

"  Reeve's  Hist.  Vol.  2,  p.  48. 

"Reeve's  Hist.  Vol.  2,  p.  46;  Gilbert  on  Replevin,  pp.  40,  59.  69. 
When  both  parties  appear  in  court  the  plaintiff  Khali  set  forth  his 
plaint  that,  whereas,  he  had  his  beasts,  to-wlt:  two  oxen,  two  horses  or 
two  cows,  or  such  chattels,  according  to  the  nature  of  the  distress,  on 
such  a  day,  in  such  a  year  of  our  reign,  in  such  a  certain  place,  there 
came  such  an  one,  (the  detainer,)  and  took  the  same  beasts  there  found, 
or  cause<l  them  to  be  taken  by  such  an  one.  and  drove  tlu-m  away  from 
the  same  pla<  e  to  another  place;  and  then  came  the  plaintiff  ami  d«'- 
manded  to  have  his  cattle  quietly  and  coulil  not  have  them,  and  after- 
wards tendered  security  for  the  sake  of   peace,  and   ofriTed   pledKcH  to 


12  THE    LAW    OF    REPLEVIN. 

laratiou  in  many  States  to  this  clay  contains  the  words,  "  Where- 
fore, he  took,"  etc.,  and  unjustly  detains  the  same  "  <iii<(inst  the 
sureties  a/id  ple<f;/i-s,'"  etc.  Tins  is  a  fragment  of  tlie  old  common 
law  practice  which  still  clings  to  this  action,  thoiigii  the  reason  for 
it  is  sometimes  forgotten.  It  tells  us  of  the  law  of  replevin  as  it 
was  practiced  more  than  six  liiindred  ycai's  ago." 

§  21.  Both  parties  actors  or  plaintiffs.  l>oth  parties  were 
called  "actors,"a  term  borrowed  from  the  ci\il  law,  signifying 
plaintiff."  The  defendant l)ecame  an  actor  hyavowuig  the  taking 
and  seeking  a  return  of  the  goods.  Tlic  i)hiintitl,  or  complainant, 
might  show  the  taking  and  detention  to  be  wrongful,  and  the  de- 
fendant, or  avowant,  while  he  could  not  deny  the  taking  or  de- 
tention against  the  sheriff's  return,  might  show  that  it  was  right- 
ful, and  demand  a  return  of  the  goods.  Replevin  was  one  of  the 
favorites  of  the  law.  In  ordinary  action  the  defendant  might 
have  essoin,  that  is,  he  might  send  his  servant  with  an  excu.se 
and  have  delay  ;  l)ut  an  unjust  taking  and  detention  of  the  de- 
fendant's goods  against  gage  and  pledge  was  regarded  in  an  un- 
favorable light.  It  was  against  the  peace,  and  but  little  removed 
from  robbery.  The  taker  must,  therefore,  state  his  reason  at  the 
day  appointed  l)y  the  sheriff.^' 

§  22.  Avowry  and  cognizance.  When  the  defendant  avowed 
the  taking  in  his  own  riglit,  as  for  rent  in  arrear,  setting  up  the 
right  in  his  defense,  it  was  called  an  avowry,  and  he  was  called 
an  avowant.  When  the  defendant  admitted  the  taking,  but  set 
up  the  riglit  of  another  under  whose  authority  he  acted,  it  Avas 
called  making  cognizance,  and  he  was  called  the  cognizor.^*^ 

appear  in  his  court,  or  elsewhere,  to  stand  to  justice  if  he  had  any 
demand  to  make  against  him,  and  yet  he  wrongfully,  against  gage  and 
pledge,  detained  them  until  the  same  beasts  were  delivered  by  the 
sheriff.     Britton,  Vol.  1,  p.  139. 

"  Evans  v.  Brander,  2  H.  Bla.  547. 

*' Statute  Westm.  2,  Ch.  2,  §  2;  Coan  v.  Bowles,  Carth.  122;  Anon.  2 
Mod.  199,  case  118;  Yates  v.  Fassett,  5  Denio,  21;  Persse  v.  Watrous,  30 
Conn.  146.  Each  party  may  recover  judgment  against  the  other  for 
different  parts  of  the  property  and  for  damages  and  costs.  Clark  v. 
Keith,  9  Ohio,  73;  Seymour  v.  Billings,  12  Wend.  286. 

^=>  Reeve's  Hist.  Vol.  2,  pp.  48,  49;  Gilbert  on  Replevin,  77,  78;  Britton, 
Vol.  1,  p.  137.  This,  perhaps,  simply  means  that  the  defendant  might 
have  a  continuance  upon  showing  cause  in  ordinary  cases,  but  not  in 
replevin.  Glanvil  devotes  some  space  to  the  law  of  essoins.  Glanvil, 
B.  1,  Ch.  22,  et  seq.;  Beam's  Trans. 

"  Statute  21,  Henry  VIH.  Ch.  19. 


HISTORICAL    INTRODUCTION.  13 

§  23.  Justified  the  taking.  The  different  claims  -which  the 
avowant  might  set  up  as  his  excuse  or  justification  for  taking  tho 
goods  were  numerous.  He  might  avow  for  rent  in  arrcar,  or  for 
damage  feasant,  or  justify  the  talcing  under  judgment  of  the 
lord's  court.  These  and  other  excuses  or  justifications  the 
plaintiff  could  deny,  and  the  question  so  presented  was  trictl. 
If  the  plaintiff'  was  successful  in  his  suit,  he  was  entitlc(l  to  ntain 
the  goods  rei)levied,  and  to  have  damages  for  the  wrongful  taking 
and  the  loss  which  it  occasioned  him.  If  however,  the  i»laintitt' 
failed  to  sustain  his  suit,  he  was  in  mercy,  and  might  be,  and 
anciently  was,  fined  for  his  false  clamor,  and  the  defendant  avow- 
ant was  entitled  to  a  return  of  the  distress,  and  by  the  statute, 
(21  Henry  VIIL,  Chap  19),  to  damages.'" 

§  24.  Removal  to  the  court  of  King's  bench.  Eitlu>r 
party  might  remove  the  case  from  before  tlu'  eoiuity  court 
(Sheriff's  court)  to  the  court  of  common  pleas,  or  King's  IumkIi  ; 
the  plaintiff",  without  showing  cause,  as  the  .suit  was  his  own; 
the  defendant,  upon  reasonable  cause.*'  lint  the  removal  was 
allowed  for  slight  cause,  and  the  truth  of  the  cau.se  alleged  was 
not  inquired  into.'"-*  Or,  if  in  the  cour.se  of  the  proceeding,  it 
appeared  that  the  light  of  freehold  came  in  question,  it  must  of 
necessity  be  removed,  as  the  sheriff'  could  not  try  it  in  his  county 
court."  So  it  became  usual  to  carry  up  all  eases  from  the  .sheriff 
to  the  courts  of  "Westminster  Hall,  in  the  fir.st  instance.  The 
usual  mode  to  oust  the  sheriff  of  jurisdiction  was  for  the  i)laintiff 
to  take  the  alias  and  plnrifn^  with  the  original  writ,  and  deliver 
only  the  pluriea  to  the  sheriff'  to  be  served,  whicli,  as  we  have 

"Anon,  Dyer,  Ilia,-  Riccards  v.  Cornforlh,  5  Mod.  3(;(J;  Woodi-roft  v. 
Kynaston,  9  Mod.  305;  Gilbert  on  Replevin.  02;  Britton,  Vol.  1,  p.  140. 

♦'Gilbert  on  Replevin,  102;  3  Blackstone's  Com.  149;  Statute  Westm. 
2,  13,  Edward  I.,  Ch.  2.  A.  D.  1285;  Woodcroft  r.  Kynaston,  9  Mod.  305; 
Anon  Loftus,  520;  F.  N.  B.  fJ9,  70. 

"Gilbert  on  Replevin,  105.  Originally  tlif  law  soonis  to  have  liccn 
otherwise.     F.  N.  B.  119.  K. 

"This  does  not  imply  that  a  freehold  was  or  coiiid  he  the  Kiihjrct  of 
rei)levin;  hut  the  tenant  or  plaintiff  in  replevin  would  Komettmes  deny 
that  he  held  his  lands  of  the  avowant,  and  so  reniiiro  him  to  prove  It, 
and  In  this  way  the  title  of  the  lord  came  In  nuestion.  Statute  Westm. 
2,  ("h.  2.  I  1.  Coke's  Reports  ronlain  many  casfK  in  ri'plevin  which 
present  this  question  In  some  form.  Fordham  r.  Akcrs.  33  L.  .F  g  \\. 
67,  holds  that  county  courts  may  proceed  even  when  title  to  laud  is  In- 
volved, If  the  defendant  does  not  remove  the  case. 


14  THE    LAW    OF    REPLEVIN. 

seen,  was  always  returnable.^'  The  sheriff  thereupon  returned 
the  writ  at  once  to  the  superior  court.  If  the  proceeding  were 
comnienced  by  writ,  the  removal  was  effected  by  the  writof  jwowe, 
as  it  was  called,  from  the  words  of  the  writ  pone  ad  petitionem^ 
etc.,  coram  justichiris  nostris.  "Put  on  the  petition,  etc.,  before 
our  justices,"  etc.  If  the  proceeding  had  been  begun  by  plaint, 
the  removal  was  effected  by  a  writ  of  recordari,  which  was  a  writ 
to  the  sheriff  commanding  him  to  make  a  record  of  the  proceed- 
ing before  him,  and  return  the  record  so  made  before  the  King's 
justices  at  Westminster."  This  record  gave  the  justices  author- 
ity to  act,  while,  in  case  the  proceeding  was  by  writ,  the  King's 
writ  put  before  them  gave  them  sufficient  authority  to  proceed. 

§  25.  The  writ  of  withernam.  If  the  defendant  had  eloigned 
the  distress,  driven  it  out  of  the  county,  or  had  concealed  it,  then, 
upon  the  sheritt''s  return  showing  that  fact,  the  plaintiff  was 
entitled  to  a  capias  in  icithernam,  a  writ  deriving  its  name  from 
two  Saxon  words,  weder,  other,  jiaaum,  distress,^''  upon  which  he 
might  have  a  second  or  indenniifying  distress,  the  writ  being  a 
command  to  the  sheriff  to  take  other  cattle  or  other  goods  of  the 
distrainor  and  deliver  them  to  the  plaintiff,  in  lieu  of  his  own, 
wi'ongfully  withholden  from  him.  >So,  when  the  defendant  had 
judgment  for  a  return  of  a  distress  which  had  been  replevied  from 
him,  and  the  plaintiff  had  eloigned  or  concealed  the  goods,  the 
defendant  was  entitled  to  the  Avrit  of  icithernaui.  This  was  a 
kind  of  reprisal  or  punishment  for  wrongfully  withholding  the 
distress.  It  was  a  relic  of  the  lex  taliotns  which  prevailed  at  a 
much  earlier  period.  Goods  taken  by  this  process  were  not 
repleviable  until  the  original  distress  was  forthcoming.^* 

'^Ante.  §  12;  Moore  v.  Watts,  1  Ld.  Raym.  613;  Woodcroft  v.  Kynas- 
ton,  9  Mod.  305. 

"F.  N.  B.  69,  70;  Statute  Westm.  2,  13,  Edward  L,  Ch.  2,  A.  D.  1285. 
The  writ  is  usually  called  the  re.  fa.  la.,  an  abbreviation  of  the  words 
recordari  facias  loqtielam.     Daggett  v.  Robins,  2  Blackf.  417. 

"F.  N.  B.  73  F.;  Moor  v.  Watts,  2  Salk.  581;  Gilbert  on  Replevin,  79; 
Anon  Dyer,  188b.  The  last  case  found  in  which  this  writ  is  recognized 
in  this  country  is  Bennett  v.  Berry,  8  Blackf.  1.  See,  also,  Woglam  v. 
Cowperthwaite,  2  Dall.  (Pa.)  68;  Weaver  v.  Lawrence,  1  Dall.  167; 
Swann  v.  Shemwell,  2  Har.  &  G.  (Md.)  283;  M'Colgan  v.  Houston,  2  Nott 
&  M.  (S.  C. )  444.  A  proceeding  similar  in  its  effect,  though  not  in 
form,  has  found  a  place  in  Michigan.    Rathbun  v.  Ranney,  14  Mich.  387. 

""Let  the  judgment  be  this:  That  he  loose  the  like  member  as  he 
has  destroyed  of  the  plaintiff."     Britton,  Vol.  1,  p.  122.     Substantially 


HISTORICAL    INTRODUCTION.  IS 

§  26.  Defects  in  the  statute  of  Marlbridge.  The  Statute 
of  Marlbridge  and  iHoeeediiig  by  plaint  was  a  vast  improvement 
on  the  earlier  proceeding  by  writ.  Yet  certain  imperfections  in 
the  practical  operation  of  the  law  remained,  occasioning  great 
inconveniences  and  sometimes  injustice.  In  tliis,  as  in  other 
actions  at  law,  and  as  is  the  law  to  this  day,  a  non-suit  suffered 
by  the  plaintiff  did  not  debar  him  from  again  bringing  suit  on  the 
same  cause  of  action,  or  prevent  the  plaintiff  in  replevin  from 
suing  out  another  replevin  for  the  same  property.  Advantage  of 
this  rule  of  law  was  sometimes  taken  by  lawyers  of  the  olden 
time,  who,  not  unlike  their  professional  brethren  of  to-day,  thought 
more  of  a  substantial  victory  for  their  clients  than  of  al>stract 
questions  touching  the  dignity  of  the  law,  and  who  rather  prided 

the  same  as  Exodus,  Ch.  21,  ver.  24.  The  writ  of  withernam  was  not  a 
part  of  the  proceeding  in  the  replevin,  but  was  a  kind  of  punishment. 
If  the  defendant  came  in  and  pleaded  non  cepit,  it  would  stay  the 
withernam,  as  he  is  not  concluded  by  the  return  elongavit.  Swann  v. 
Shemwell.  2  Har.  &  G.   (Md.)   2S3. 

"  I  venture  to  transcribe  into  this  note  a  case  from  the  Year  Book, 
30,  31,  Edward  I.,  p.  18,  not  only  as  a  specimen  of  the  ancient  style  of 
law  reporting,  but  as  illustrating  many  points  in  the  text.  This  is  one 
of  the  first  cases,  reports  of  which  are  accessible.  There  are  a  number 
of  cases,  some  eight  or  ten  years  earlier,  but  none  which  so  vividly 
illumine  the  points  under  discussion.  This  report  also  possesses  value 
as  showing  the  highly  advanced  state  of  pleading  at  that  early  day. 
and  the  technical  exactness  with  which  the  law  was  administered,  li 
may  be  remarked,  en  passayit,  that  the  amount  of  litigation  in  those 
days,  as  shown  in  these  early  reports,  is  a  matter  of  astonishment.  In 
one  volume,  containing  about  the  same  number  of  pages  as  an  ordinary 
volume  of  law  reports  of  to-day,  may  be  found  twenty-six  cases  of 
replevin  alone. 

Reports  of  the  case  of  The  Abbot  of  Cirences^r  v.  Thomas,  of  Maty- 
shale.     Year  Book,  30,  31,  Edward  I.,  p.  18,  A.  D.  1302. 

[The  names  of  the  Judges  are  in  small  cai)ituls,  and  counsel  In  Italics.] 
The  Abbot  of  Cirencester  distrained  on  one  Thomas,  of  Matysliale,  lu 
the  town  of  Cirencester.  Thomas  came  into  court  and  [u  lino  in  the 
MS.  here  has  been  entirely  erased.]  commenced  suing  the  Abbott.  Tlie 
bailifr  of  the  Hheriff  came,  and  wished  to  liberate  Thomati'  beaKtH,  and 
could  not,  because  Cirencester  Is  of  the  King's  ancient  demeHno.  and 
not  guildable  to  the  county  court,  etc.  When'for<»,  the  county  court 
awarded  a  distrcHH  on  tlur  Abbot.  Afterwards  Thomas  l)rouglit  replevin, 
etc.,  and  Kought  delivery.  •  •  •  Wherefore.  h«*  sued  out  the  replevin 
"  aicut  alias  vcl  causam  nobis  sioniflcetia,"  and  to  this  writ  the  slivrltT 


IG  THE    LAW    OF    REPLEVIN. 

themselves  on  an  observance  of  the  teclinical  rules  of  the  law,  and 
especially  where  these  rules  were  found  highly  advantageous  to 
the  case  in  which  they  were  engaged.  It,  therefore,  fretiuently 
happened  that  when  the  case  was  called  I'oi-  tiial  and  the  plaintiff 
saw  his  opponent  Avith  his  witnesses  ready  to  ])rocee(l,  he  would 
suffer  himself  to  be  non-suited  and  a  return  of  the  juoperty  ad- 
judged against  him,  and  would  then  at  once  replevy  tlie  same 
goods  again,  and  again  suffer  a  non-suit,  and  again  replevy,  and 
so  on  in  infinitum,  to  the  intolerable  vexation  of  the  lord.  It  was 
also  a  common  occurrence  for  the  tenant,  pending  the  suit  in 
replevin,  to  sell  the  cattle  and  become  in.solvent.  The  pledges  or 
securities  which  the  plaintiff  gave,  and  which  originally  were  re- 
quired  to   be   substantial   securities,  were   only   to   answer   his 

returned  that  lie  had  commanded  the  bailiffs  of  the  liberty  of  the 
Abbot  of  Cirencester  [and]  that  they  should  [would]  do  nothing. 
Wherefore,  the  "  omit  not  by  reason  of  the  franchise  "  was  sued  out, 
etc.,  and  the  sheriff,  by  virtue  of  this  writ,  entered  the  franchise  and 
made  deliverance  and  attached  the  Abbot,  etc.,  and  then  the  Abbot 
caused  the  proceedings  to  be  removed  into  hanc  by  pone,  and  the  case 
ran  thus:  "  That  the  said  Abbot  asserts  that  he  took  the  said  beasts  in 
a  portion  of  the  appurtenances  of  his  manor  of  Cirencester,  which  is 
of  the  ancient  demesne  of  the  crown  of  England,  for  customary,  etc.,  to 
him  due.  Thomas  and  the  Abbot  came  into  court.  Asseby — Counted, 
etc.  Herle — Cirencester,  where  the  seizure  was  made,  is  of  the  ancient 
demesne,  etc.,  where  no  writ  runs,  etc.,  except,  etc.,  and  this  Thomas 
is  tenant  in  ancient  demesne,  etc.,  and  we  do  not  understand  that  in 
this  court,  or  elsewhere,  at  common  law,  he  ought  to  be  answered. 
Asseby — The  proceedings  were  removed  here  at  his  own  suit,  etc.,  and 
the  plea  is  attached  to  this  court,  etc.,  and  we  pray  judgment,  etc. 
Warr — The  place  where  the  seizure  was  made  Is  holden  of  the  Abbott, 
etc.,  and  is  of  the  ancient  demesnes,  etc.,  and  he  is  tenant  in  ancient 
demesne,  etc.,  and  this  he  cannot  deny,  etc.;  and  we  pray  judgment,  etc. 
BKRKroRD — He  tells  you  that  out  of  the  ancient  demesnes  you  ought 
not  to  be  answered  on  this  writ,  nor  any  other,  except  where  you  are 
distrained  for  services  which  you  do  not  owe.  As  for  that,  there  is  a 
certain  writ  in  regular  form,  etc.  Asseby — You  formerly  sued  for  a 
return  of  the  chattels,  in  this  court,  on  the  plea,  etc.,  and  so  this  court 
is  seized,  etc.,  and  we  pray  judgment,  etc.  Warr — That  was  by  your 
nonsuit,  etc.;  for  at  first  you.  did  not  come  into  court;  wherefore,  we 
were  able  to  challenge  this  proceeding,  etc.  Bekkford's  reply  to  his 
statement — That  you  are  of  the  King's  ancient  demesnes  within  which, 
etc.,  the  seizure  was  made,  etc.  Asseby — We  cannot  deny  that  Ciren- 
cester where  the  seizure  was  made,  is  of  the  ancient  demesnes,  etc.; 
but  we  tell  you  that  we  hold  the  tenements  where  the  seizure  was  made, 
of  the  Abbott,  by  the  services  of  XXVHI  d;  by  the  year,  in  lieu  of  all 


HISTORICAL    INTRODUCTION.  17 

amercement  to  the  King  pro  /also  clamor,  and  these  soon  degen- 
erated into  bare  form;  John  Doe  and  Richard  Roe,  imaginary 
persons,  being  the  only  security  required,  so  that  the  lord  took 
nothing  by  his  judgment.^ 

§  27.  The  statute  of  Westminster  and  the  writ  of  second 
deliverance.  To  remedy  these  evils  the  Statute  of  Westminster, 
2,  Ch.  2,  was  enacted  in  the  thirteenth  year  of  Edward  I.,  A.  D. 
1285."     The  statute  also  provided  that  the  sheriff  should  not 

services.     Warr — How  do  you  prove  it?     Asseby — Ready Warr — 

Since  you  have  admitted  that  Cirencester  is  of  the  ancient  demesnes, 
etc.,  and  that  you  are  tenant  etc.,  and  do  not  show  that  these  tene- 
ments have  been  enfranchised,  etc.,  we  pray  judgment,  etc.  Berefokd, 
(to  Asseby,) — Have  you  any  deed  to  evidence  what  you  have  alleged, 
etc.?  Assehy — Ready,  etc.,  Berefokd — Since,  etc.,  (as  above,  in  the 
reply,)  the  court  adjudges  that  the  Abbot  goes  quit,  without  day.  and 
that  you,  etc.,  by  your  writ,  but  are  in  mercy,  etc.  Warr — We  pray  the 
return.  Bereford — You  shall  not  have  it  from  us;  but  when  you  get 
to  the  inn  do  to  your  arch  villian  what  you  please,  etc. 

^3  Inst.  p.  9;  3  Blackstone,  274,  287;  Baker  v.  Philips,  4  Johns.  190. 
"  Pledgii  "  in  the  old  books  signified  securities.  Evans  v.  Brander,  2 
H.  Bla.  547. 

"  By  the  recent  publication  of  old  manuscript  reports  of  a  case  in  the 
time  of  Edward  I.,  it  appears  that  Henoham  was  the  author  of  this 
statute.  Horwood's  preface  to  his  translation  of  Year  Book,  30,  31,  E.  1. 
p.  31.    The  chapter  cited  it  as  follows: 

I.  Forasmuch  as  lords  of  fees  distraining  their  tenants  for  services 
and  customs  due  unto  them,  are  many  times  grieved  because  their 
tenants  do  replevy  the  distress  by  writ,  or  without  writ,  and  when 
the  lords  at  the  complaint  of  their  tenant  do  come  by  attachment  into 
the  county,  or  unto  another  court  having  power  to  hold  pleas  of  re- 
plevin, and  do  avow  the  taking  good  and  lawful  by  reason  that  the 
tenants  disavow  to  hold  aught,  nor  do  claim  to  hold  anything  of  him 
(which  took  the  distress  and  avowed  it,)  he  that  (listrained  is  amerced 
and  the  tenants  go  quit,  to  whom  punishment  cannot  be  assigned  for 
such  disavowing  by  record  of  the  county,  or  of  other  courts  having  no 
record. 

n.  It  is  provided  and  ordained  from  henceforth,  that  where  such 
lords  cannot  obtain  justice  In  counties.  an<l  such  manner  of  courtH 
against  thflr  tenants,  as  soon  as  they  Khali  be  attach»»<l  at  the  suit  of 
their  tenants,  a  writ  shall  be  granted  to  them  to  remove  the  plea  be- 
fore the  justices,  before  whom,  and  none  oilier,  where  justice  may  bo 
ministered  unto  kucIi  lords,  and  the  cause  shall  be  |)ut  In  the  writ,  be- 
cause such  a  man  distrained  In  his  fee  for  servlies  and  cuHtoniH  to 
him  due.  Neither  Is  this  act  prejudb  lal  to  the  law  ronimonly  UHod. 
which  did  not  permit  that  any  pleas  should  be  moved  before  juHtln-H 
At  the  Hult  of  the  defendant.     For  though  It  appear  at  the  HrHt  nhowr 


18  THE    LAW    OF    REPLEVIN. 

only  take  security  for  the  suit,  but  also  "  for  the  beasts  or  cattle 
to  be  returned,  or  the  price  of  them,  if  return  be  awarded  "  Here 
is  the  first  appearance  among  our  laws  of  the  bond  or  security  for 
the  return  of  the  goods  to  the  defendant  in  replevin,  and  is  sul)- 
stantially  the  same  as  we  have  it  at  the  distance  of  nearly  six  hun- 
dred years.  The  Statute  of  11  George  11.,  Ch.  19,  §§  22,  23,  being 
only  explanatory,  and  in  aid  of  the  provisions  of  tlie  Statute  of 
Westminster  and  the  Statute  Westminster  also  provided  against 
replevins  in  in  injinition  by  awarding  the  avowant  a  retuin  of 
the  cattle  after  a  non-suit  of  the  plaintiff,  to  hold  irreplevil)le 
except  by  a  writ  issuing  uj^on  the  records  of  the  justices  before 
whom  the  suit  in  replevin  was  tried.  The  writ  of  retorno^  in  such 
cases,  after  the  order  for  return,  contained  a  clause  as  follows : 

"And  that  you  do  not  again  deliver  them  upon  complaint  of 

(the  plaintiff,)  without  our  writ,  which  should  expressly  mention 
the  aforesaid  judgment,"     The  goods  returned  by  virtue  of  this 

that  the  tenant  is  plaintiff  and  tlie  lord  defendant,  nevertheless,  having 
respect  to  that,  that  the  lord  hath  distrained,  and  sueth  for  services 
and  customs  being  behind,  he  appeareth  indeed  to  be  rather  actor  or 
plaintiff  than  defendant.  And  to  the  intent  the  justices  may  know 
upon  what  fresh  seizin  the  lords  may  avow  the  distress  reasonable  upon 
their  tenants.  From  henceforth  it  is  agreed  and  enacted,  that  a  reason- 
able distress  may  be  avowed  upon  the  seizin  of  any  ancestor  or  prede- 
cessor since  the  time  that  a  writ  of  novel  disseizure  hath  run.  And 
because  it  chanceth  sometimes  that  the  tenant,  after  he  hath  replevied 
his  beasts,  doth  sell  or  alien  them,  whereby  return  cannot  be  made  unto 
the  lord  that  distrained  if  it  be  adjudged. 

IIL  It  is  provided  that  sheriffs  or  bailiffs  from  henceforth  shall  not 
only  receive  of  the  plaintiffs  pledges  for  the  pursuing  of  the  suit,  before 
they  make  deliverance  of  the  distress,  but  also  for  the  return  of  the 
beasts  if  return  be  awarded.  And  if  any  take  pledges  otherwise  he 
shall  answer  for  the  price  of  the  beasts,  and  the  lord  that  distrained 
shall  have  his  recovery  by  wit;  that  he  shall  restore  unto  him  so  many 
beasts  or  cattle.  And  if  the  bailiff  be  not  able  to  restore,  his  superior 
shall  restore.  And  forasmuch  as  it  happeneth  sometimes  that  after  the 
return  of  the  beasts  is  awarded  unto  the  distrainor,  and  the  party  so 
distrained,  after  the  beasts  be  returned,  doth  replevy  them  again,  and 
when  he  seeth  the  distrainor  appearing  in  the  court  ready  to  answer 
him  does  make  default,  whereby  a  return  of  the  beasts  ought  to  be 
awarded  again  unto  the  distrainor,  and  so  the  beasts  be  replevied 
twice  or  thrice,  and  infinitely,  and  the  judgments  given  in  the  King's 
courts  take  no  effect  in  this  case,  whereupon  no  remedy  hath  been  yet 
provided;  in  this  case,  such  process  shall  be  awarded,  that  as  soon  as 
the  return  of  the  beasts  shall  be  awarded  to  the  distrainor  the  sheriff 


HISTORICAL    INTRODUCTION.  19 

writ  were  not  again  subject  to  replevin  at  the  suit  of  the  same 
party,  except  upon  a  writ  of  second  deliverance  which  recited  the 
former  judgment,  and  this  writ  only  issued  upon  cause  shown, 
and  not  as  a  matter  of  course. ^^ 

§  28.  Statute  Charles  II.  The  Statute  of  Charles  II.,  Ch. 
7.  A.  D.  16G5,  provided' that  when  the  plaintiff  in  replevin  was 
non-suited,  or  judgment  be  given  against  him,  a  M^rit  of  inquiry 
should  issue  to  ascertain  how  much  rent  was  in  arrear  to  the  dis- 
trainor and  also  the  value  of  the  distress,  and  he  was  entitled  to 
judgment  for  the  sum  due  as  rent,  or  to  so  much  as  the  value  of 
the  distress,  with  execution  therefor,  with  a  right  to  distrain 
again  for  the  amount  unpaid  and  in  arrear. 

§  29.  Statute  George  II.  The  Statute  11  George  II.,  Ch.  19, 
§  23,  provided  that  all  officers  gi-anting  replevins  should,  in  any 
replevy  of  a  distress,  take  a  bond  from  the  plaintiff  with  two  re- 
sponsible securities,  and  in  double  the  value  of  the  goods,  condi- 
tioned for  the  prosecution  of  the  suit  and  return  of  the  goods  in 
case  return  be  awarded,  and  provided  that  the  sheriff  might  en. 
dorse  the  bond  to  the  avowant,  or  person  making  cognizance, 
who  might  sue  on  it  in  his  own  name,  and  that  the  court  by  rule 
should  give  such  relief  as  was  agreeable  to  justice. 

shall  be  commanded  by  a  judicial  writ  to  make  return  of  the  beasts 
unto  the  distrainor,  in  which  writ  it  shall  be  expressed  that  the  sheriff 
shall  not  deliver  them  without  writ  making  mention  of  the  judgment 
given  by  the  justices,  which  cannot  be  without  a  writ  issuing  out  of 
the  rolls  of  the  said  justices  before  whom  the  matter  was  moved. 
Therefore,  when  he  cometh  unto  the  justice  and  desireth  replevin  of 
the  beasts,  he  shall  have  a  judicial  writ  that  the  sheriff  taking  surety 
for  the  suit,  and  also  of  the  beasts,  or  cattle,  to  be  returned,  or  the 
price  of  them  (if  return  be  awarded.)  shall  deliver  unto  him  the  beasts 
or  cattle  before  returned,  and  the  distrainor  shall  be  attached  to  come 
a  certain  day  before  the  justices  afore  whom  the  plea  was  moved  in 
the  presence  of  the  parties.  And  if  he  that  replevied  make  default 
again,  or  for  another  cause,  return  of  the  distress  be  awarded;  being 
now  twice  replevied,  the  distress  shall  remain  irrepleviable.  But  if  a 
distress  be  taken  of  new,  ami  for  a  new  cause,  the  process  aforesaid 
shall  be  observed  in  the  same  new  di.strcKS  to  the  avowant,  and  wero 
lrrei)ieviable,  except  by  a  writ  nu'iitionliig  the  former  judgment,  which 
was  called  a  writ  of  second  dcllv<'ran<e. 

This  statute  is  local  to  Great  Hrilain  and  docs  not  apply  in  this  coun- 
try.    Daggett  V.  Robins.  2  Ulackf.  417. 

"The  writ  of  replevin  was  a  writ  of  right,  and  iKsucd  of  cours*'.  Tln> 
writ  of  second  delivery  was  a  writ  of  grace,  or  favor.    Anon,  2  Atk.  -37. 


20  THE    LAW    OF    REPLEVIN. 

§  30.  Conclusion.  This  brings  the  history  of  the  action 
down  to  a  comparatively  modern  time.  In  this  sketch  of  the 
history  of  the  law  of  replevin,  as  it  was  formerly  practiced,  the 
author  has  been  compelled  to  omit  all  details,  as  well  as  many 
matters  of  general  import ;  he  has  endeavored  to  state  only  suflH- 
cient  to  give  an  idea  of  the  origin  of  the  action,  and  to  indicate 
some  of  the  principal  steps  by  which  it  has  grown  from  a  half 
civilized  contest,  in  which  outrage  was  a  prominent  ingredient, 
in  cases  when  the  sole  question  was  the  right  to  a  distress,  into  a 
ready  instrument  for  the  settlement  of  almost  all  disputes  con- 
cerning the  ownership  and  possession  of  property. 


GENERAL    PRINCIPLES. 


21 


CHAPTER  II. 


GENERAL  PRINCIPLES. 


Section. 

Definition 31 

Replevin  lies  for  chattels  wrong- 
fully taken  and  detained        .     32 

Recovery  of  specific  goods  the 
primary,  and  value  or  dam- 
ages the  secondary,  object      .     33 

It  is  a  mixed  action,  partly  in 
rem  and  partly  in  personam  .     34 

The  writ  is  a  writ  of  right        .     35 

Form  of  proceeding  in  differ- 
ent States  substantially  the 
same 3G 

Peculiarities  of  the  action  ;  priv- 
ileges to  the  plaintiff    .        .     37 

Importance  of  the  action  .         .     38 

Tlje  right  to  present  possession 
the  question  at  issue       .         .     39 

Statutory  provisions  concerning 
delivery 40 

Formerly,  would  lie  only  for 
a  distress  .        .         .         .41 

The  same 42 

The  same 43 


Section 

Similarity  of  replevin  to  tres- 
pass, trover  and  detinue 

Characteristics,  compared  with 
those  of  trover  and  trespass  . 

The  same 

Distinctions  between  this  action 
and  trespass  and  trover  . 

Tlie  same 

The  same 

The  same 

Wliere  one  takes  forcible  pos- 
session of  his  own  property, 
he  is  not  liable  in  replevin 

Actual  detention  of  the  goods 
necessary  to  sustain  tlie  ac- 
tion   r>2 

Replevin  in  cepit,  definet  and 
detinuet 53 

Wrongful  taking        .         .         .     TA 

The  scope  of  the  investigation  .     55 

The  same 56 

The  same 57 


51 


§  3L     Definition.     Replevin  is  an  action  at  law  for  the  recov- 
ery of  specittc  personal  chatteLs '  wrongfully  taken  and  detaint'd. 


'Rogers  v.  Arnohl,  12  Wend.  34;  Hickey  v.  Hinsdale.  12  Mich.  100; 
Mendelsohn  t;.  Smith.  27  Mich.  2;  Travers  v.  Inslee.  19  Mich.  101;  Uacon 
V.  Davis,  30  Mich.  157;  Badger  t-.  Fhlnney,  15  Mass.  362;  Philips  v. 
HarrlsB,  3  .1.  J.  Marsh.  (Ky.)  123;  Buckley  v.  Buckley,  9  Nev.  379;  Mc- 
Ferrln  v.  Perry.  1  Sneed.  (Tenn.)  314;  Scott  v.  Elliott.  C3  N.  C.  215; 
Barksdalf!  v.  Applebprry,  23  Mo.  39(i.  "The  only  cfffcdvo  remedy 
for  tho  recovery  of  personal  chattels."  Klngnhtiry's  Kxrs  i'.  Ijuic'h 
KxTH.,  21  .Mo.  1  !.'■>.  "The  object  of  the  writ  Is  to  redeliver  or  restore 
goods  to  the  poswjBslon  of  the  person  who  bus  the  general  or  special 


22  THE    LAW    OF    REPLEVIN 

or  wrongfully  detained,  with  damages  Avliicli  the  wrongful  tak- 
ing or  detention  has  occasioned.' 

l)roperty."  Lathrop  v.  Cook,  14  Me.  415.  To  same  effect,  Yates  v. 
Fassett.  5  Denio,  21;  Pangburn  v.  Patridge,  7  John.  140;  Harwood  v. 
Smethurst,  5  Dutch.  (29  N.  J.  L.)  197.  "The  appropriate  remedy,  in 
all  cases  where  the  plaintiff  seeks  to  try  title  to  personal  property  and 
recover  possession."  McKinzie  v.  Bait.  &  Ohio  R.  R.,  28  Md.  161.  "  The 
proper  remedy  in  all  cases  where  the  plaintiff  has  a  right  to  the  im- 
mediate and  exclusive  possession  of  chattels  which  he  wishes  to  re- 
cover." Cullum  V.  Bevans,  6  Har.  &  J.  (Md.)  4G9;  Brooke  v.  Berry,  1 
Gill.  (Md.)  153;  Pattison  v.  Adams,  7  Hill,  12G;  Johnson  v.  Carnley,  6 
Seld.  (N.  Y.)  570;  Ilsley  v.  Stubbs,  5  Mass.  280;  Badger  v.  Phinny,  15 
Mass.  362;  Baker  v.  Fales,  16  Mass.  147;  Shannon  v.  Shannon,  1  Sch. 
&  Lef.  (Irish,)  318;  Peirce  v.  Hill,  9  Port.  (Ala.)  151;  Shaddon  v. 
Knott,  2  Swan,  (Tenn.)  358;  Robinson  v.  Richards,  45  Ala.  354;  Town 
V.  Evans,  1  English,  (6  Ark.)  260;  Paul  v.  Luttrell,  1  Colorado,  317. 
"  The  action  has  been  liberally  extended,  and  now  embraces  every  case 
of  personal  property  which  is  in  the  possession  of  one  person  and  is 
claimed  by  another."  Snyder  v.  Vaux,  2  Rawle,  423.  See,  also,  Keite 
V.  Boyd,  16  S.  &  R.  (Pa.)  300;  Sprague  v.  Clark,  41  Vt.  6;  Stoughton  v. 
Rappalo,  3  S.  &  R.  (Pa.)  559;  York  v.  Davis,  11  N.  H.  241;  Harlan  v. 
Harlan,  15  Pa.  St.  513;  Mackinley  v.  McGregor,  3  Whart.  (Pa.)  369; 
Woods  V.  Nixon,  Addis,  (Pa.)  134.  "Lies  at  the  instance  of  a  party 
where  property  has  been  improperly  seized  by  an  officer  on  legal  pro- 
cess." Gimble  v.  Ackley,  12  Iowa,  27;  Wilson  v.  Stripe,  4  G.  Greene, 
551;  Cooley  v.  Davis,  34  Iowa,  129;  Smith  v.  Montgomery,  5  Iowa,  370; 
Chinn  v.  Russell,  2  Blackf.  (Ind.)  170;  Marchman  v.  Todd,  15  Ga.  25; 
Miller  v.  Bryan,  3  Iowa,  58;   Shearlck  v.  Huber,  6  Binn.  (Pa.)   3. 

=  Herdic  v.  Young,  55  Pa.  St.  176;  Mitchell  v.  Burch,  36  Ind.  535; 
Newell  V.  Newell,  34  Miss.  385;  Hotchkiss  v.  Jones,  4  Porter,  (Ind.) 
260;  Hart  v.  Fitzgerald,  2  Mass.  510;  Scott  v.  Elliott,  63  N.  C.  21.5; 
Kendal  v.  Fitts,  2  Foster,  (N.  H.)  1;  Cumberland  Coal  &  Iron  Co.  v. 
Tilghman,  13  Md.  74;  Messer  v.  Bally,  11  Foster,  (31  N.  H.)  9;  McKean 
V.  Cutler,  48  N.  H.  371;  Bell  v.  Bartlett,  7  N.  H.  178;  Peyton  v.  Robert- 
son, 9  Wheat.  527;  Morgan  v.  Reynolds,  1  Blake,  (Montana,)  164.  The 
action  is  not  for  the  recovery  of  damages  or  value,  except  as  an  inci- 
dent to  the  action  for  the  specific  thing;  but  it  is  not  strictly  confined 
to  the  recovery  of  the  thing,  nor  is  judgment  for  the  property  essential. 
Damages  may  sometimes  be  given  in  lieu  of  the  property;  otherwise, 
upon  the  death  or  destruction  of  the  property,  pending  the  suit,  the 
action  would  fail.  Barksdale  v.  Appleberry,  23  Mo.  390;  Mackinley  v. 
McGregor,  3  Whart.  370.  And,  again,  if  one  hire  a  horse  for  a  year, 
and  pending  the  time  the  horse  be  taken  by  one  without  right,  the 
lessee  may  bring  replevin;  but  if  the  property  be  not  delivered  on  the 
writ,  and  after  the  year  expires,  and  before  judgment,  the  taker  sur- 
renders it  to  the  owner,  the  lessee  may  recover  damages  for  the  deten- 
tion, but  not  necessarily  judgment  for  the  property  or  its  value.  Cole 
V.  Conolly,  16  Ala.  271. 


GENERAL    PRINCIPLES.  2S 

§  32.  Replevin  lies  for  chattels  wrongfully  detained.  Ifc 
lies  for  all  goods  and  chattels  wrongfully  taken  or  detained,  and 
may  be  brought  whenever  one  person  claims  chattel  property 
in  the  possession  of  another,  whether  his  property  in  the  goods 
be  absolute  or  qualitied,  provided  he  has  the  right  of  possession 
at  the  time  the  suit  is  begun.^ 

'Harlan  v.  Harlan,  15  Pa.  St.  507;  Lazard  v.  Wheeler,  22  Cal.  140; 
Weaver  v.  Lawrence,  1  Dall.  (Pa.)  156;  Clark  v.  Skinner,  20  Johns.  467; 
Shearick  v.  Huber,  6  Binn.  3;  Stoughton  v.  Rappallo,  3  S.  &  R.  (Pa.) 
562;  Williams  v.  West.  2  Ohio  St.  83.  The  action  was  formerly  limited 
to  cases  of  wrongful  distress,  but  has  long  since  outgrown  its  original 
limits,  and  now  lies  in  all  cases  of  unlawful  taking  and  detention  of 
goods.  Osgood  V.  Green,  10  Fost,  (N.  H.)  210;  Daggett  v.  Robins,  2 
Blackf.  (Ind.)  415;  Sprague  v.  Clark,  41  Vt.  6;  Chinn  v.  Russell,  2 
Blackf.  (Ind.)  172;  Meany  v.  Head,  1  Mason  C.  C.  319.  See  Bofil  v. 
Russ,  3  Strobh.  (S.  C.)  98.  "It  lies  for  goods  unlawfully  detained, 
though  there  may  have  been  no  tortious  taking."  Marston  v.  Baldwin, 
17  Mass.  609;  Pierce  v.  Hill,  9  Port.  (Ala.)  151;  Paul  v.  Luttrell,  1 
Colorado,  317.  Contra,  Cummings  v.  MacGill.  2  Murphy,  (N.  C.)  359; 
Dickson  v.  Mathers,  Hempst.  C.  C.  65;  Duffy  v.  Murrill,  9  Ired.  (N.  C.) 
46.  "  The  gist  of  the  action  is  the  wrongful  detention."  Benje  v. 
Creagh's  Admrs.  21  Ala.  151.  When  goods  are  wrongfully  detained 
upon  a  warrant  which  has  been  quashed  or  set  aside  by  the  court, 
replevin  lies  by  the  owner.     Slayton  v.  Russell,  30  Ga.  127. 

Notp:  I.  For  what  the  action  lies;  documents. — Title  deeds  for  lands 
may  be  recovered  in  replevin.  Wilson  v.  Rybolt,  17  Ind.  391.  Not 
where  the  question  is  whether  the  deed  has  ever  been  delivered. 
Fiannigan  v.  Goggins,  71  Wis.  28,  36  N.  W.  846.  Hooker  v.  Latham. 
118  X.  C.  179,  23  S.  E.  1004.  Contra  Simmonsen  r.  Curtis.  43  Minn. 
539.  45  N.  W.  1135.  Replevin  will  not  lie  by  the  maker  of  a  promis- 
sory note  before  payment  thereof,  even  though  he  show  duress; 
Ol.son  V.  Thompson,  6  Okla.  74,  48  Pac.  184.  6  Okla.  575,  52  Pac. 
388.  The  court  on  rehearing  approve  the  case  of  Sigler  v.  Hidy, 
56  la.  504,  9  N.  W.  374,  where  it  was  held  that  in  an  action  upon 
a  promissory  note  the  defendant  might,  by  rountorclnlm.  averring  that 
the  note  was  obtained  by  fraud,  and  had  been  altered  in  :i  material  p;irt. 
demand  possession  of  It.  Replevin  lies  for  the  i)ron)lssory  note  of  a 
third  person,  the  property  of  plaintiff,  of  which  th«'  defendant  has 
wrongfully  oljtalned  possession.  More  v.  Finger.  128  Calif.  313,  60 
Pac.  933;— by  administrator  of  the  deceased  payee,  though  there  arc  no 
debts,  Prltchard  v.  Norwood,  155  Mass.  539,  30  N.  K.  80;  or  l)y  a  minor 
suing  by  his  next  friend,  his  guardian  having  been  discharged,  Uush 
V.  CJroomeH,  125  Ind.  14,  24  N.  E.  81.  And  replevin  lies  where  the  de 
fentlant  has  gotten  poHHesHion  of  promissory  noten  "  to  hcg  then)." 
pending  a  bargain  for  lan»lK  never  (•onH»ininiale(|..nrown  v.  Pollard.  Kit 
Va.  696.  17  S.  E.  6.  And  wherever  undi-r  (ho  faelH,  i'(|iiHy  would  (bcrer 
camellatlon,  Shl|»ley  r.  ReaHoner.  80  la.  548,  50  N.  W.  1077;  c.  g.  where. 


24  THE    LAW    OF    REPLEVIN. 

§  33.  Recovery  of  specific  goods  the  primary  object,  and 
of  value  or  damages,  the  secondary.     The  i)iiiiiaiy  object  of 

the  note  has  been  paid.  Savery  v.  Hayes,  20  la.  25,  89  Am.  Dec.  511;  — 
or  where  there  was  no  consideration;  or  the  note  was  obtained  by 
fraud,  or  has  been  altered.  Sigler  v.  Hidy,  5C  la.  504,  9  N.  W.  374;  — 
or  the  consideration  has  totally  failed,  or  the  transaction  in  which  it 
was  given  has  been  lawfully  rescinded,  id.  And  see  Hefner  v.  Fidler 
(W.  Va.).  51  S.  E.  513. 

But  not  if  it  was  part  of  a  scheme  to  defraud,  to  which  the  maker 
was  privy.     Sigler  v.  Hidy,  supra. 

And  see  Todd  v.  Cruikshanks,  W.  Va.,  52  S.  E.  515,  where  it  was  held 
that  a  promissory  note  alleged  to  have  been  executed  by  plaintilT  to 
defendant  for  purchase  money  of  chattels  bought  on  the  faith  of 
representations  of  the  plaintiff  which  were  false,  cannot  be  recovered  in 
replevin.  The  reasoning  of  the  court  is  that  the  judgment  must  by  the 
statute  be  in  the  alternative,  for  the  thing  or  its  value;  that  if  the 
note  was  obtained  by  fraud  it  has  no  value;  so  that  the  requirements 
of  the  statute  cannot  be  performed. 

Replevin  lies  for  a  draft  altered  in  a  material  part,  Smith  v.  Eals,  81 
la.  235,  46  N.  W.  1110;  for  a  promissory  note  executed  by  pl3.intiff  for 
negotiation  for  the  accommodation  of  a  third  person,  which,  he  being 
unable  to  negotiate  it,  the  defendant  has  wrongfully  taken  into  posses- 
sion. Decker  v.  Matthews,  12  N.  Y.  313;  and  see  Lincoln  Bank  v.  Allen, 
82  Fed.  148,  27  C.  C.  A.  87;  for  a  promissory  note  of  plaintiff  obtained 
by  duress,  Kennedy  v.  Roberts,  105  la.  521,  75  N.  W.  363.  But  not  to 
recover  a  promissory  note  of  the  plaintiff  upon  allegation  of  payment 
by  a  new  note,  unless  the  second  note  is  commercial  paper,  or  an  ex- 
press agreement  to  accept  it  in  satisfaction  is  averred,  Combs  v.  Bays, 
19  Ind.  Ap.  263,  49  N.  E.  398.  Not  for  a  check  which  has  been  paid, 
cancelled  and  returned  to  the  drawer  who  is  plaintiff  in  the  replevin, 
Barnett  v.  Selling,  3  Abb.  N.  C.  83.  It  lies  for  negotiable  bonds,  Gibson 
V.  Lenhart,  111  Pa.  St.  624,  5  Atl.  52;  for  coin  and  bills  identified  by 
numbers  and  denominations,  and  "  all  contained  in  the  aforesaid  convas 
belt,"  Eddings  v.  Boner,  1  Ind.  T.  173,  38  S.  W.  1110;,  for  money  sealed 
in  a  sack  and  marked  with  the  plaintiff's  name,  Sharon  v.  Nunan,  63 
Calif.  234.  But  whether  coin  or  paper,  it  is  not  repleviable  after  it 
has  passed  from  the  hands  of  the  wrong-doer  and  become  mingled  with 
the  general  mass  of  the  circulating  medium,  Lovell  v.  Hammond  Co., 
66  Conn.  500,  34  Atl.  511.  Replevin  lies  for  bank  bills  if  they  can  be 
identified,  e.  g.  by  the  name  of  the  bank,  the  denomination,  the  date, 
letter,  or  any  other  means  showing  what  are  the  particular  bills  in 
question,  Graves  v.  Dudley,  20  N.  Y.  77;  Murray  v.  Norwood,  77  Wis. 
405,  46  N.  W.  499;  for  bonds  of  a  railway  company,  by  legatee  against 
executrix.  Covin  v.  De  Miranda,  140  N.  Y.  662,  35  N.  E.  628.  For  a 
verified  claim  against  a  decedent's  estate.  Willis  v.  Marks,  29  Ore. 
493,  45  Pac.  293;  for  vouchers  or  statements  of  expenditure,  Drake  v. 
Auerbach,  37  Minn.  506,  35  N.  W.  367.     A  license  to  sell  liquors  is  a 


GENERAL    PRINCIPLES.  25 

the  action  is  to  recover  the  specific  chattels  which  have  been 

mere  chose  in  action,  Anchor  Co.  r.  Burns,  52  N.  Y.  Sup.  1005;  but  in 
Quinnipiac  Co.  v.  Hachbarth,  74  Conn.  392,  50  Atl.  1023,  replevin  was 
allowed  for  such  a  document;  for  a  certificate  of  deposit  held  by  defend- 
ant as  trustee  for  the  plaintiff  though  endorsed  to  defendant,  Robinson 
t'.  Stewart,  97  Mich.  454,  56  N.  W.  853.  A  promissory  note  is  paid  to 
one  of  two  executors  named  as  payees  therein.  Trover  will  not  lie 
by  the  maker  against  the  other  payee  detaining  it.  The  court  say  that 
the  note  was  completely  discharged,  was  of  no  value,  and  did  not  be- 
long to  the  plaintiff,  and  it  might  be  useful  to  the  defendant  to  show 
that  he  had  not  received  the  money,  that  "  Such  an  action  as  this  was 
never  brought  before,"  Todd  t\  Crookshanks,  3  Johns.  432.  But  where 
defendant  had  obtained  the  note  of  plaintiff  for  the  special  purpose  of 
receiving  money  upon  it  for  their  joint  accommodation,  and  immedi- 
ately passed  it  to  another  to  pay  his  individual  debt,  and  the  plaintiff 
paid  the  note  at  maturity,  it  was  held  he  was  entitled  to  maintain 
trover,  Murray  v.  Burling,  10  Johns.  172.  A  check  was  drawn  by  a 
third  person  payable  to  the  defendant,  but  for  the  plaintiff;  defendant 
endorsed  it  to  plaintiff,  but  afterwards  struck  out  the  endorsement  and 
converted  it.  It  was  held  that  plaintiff  might  have  replevin,  Haas  v. 
Altieri,  2  Misc.  252,  21  N.  Y.  Sup.  930.  Plaintiff  took  a  promissory  note 
in  the  name  of  her  son  for  moneys  actually  advanced  by  her  and  be- 
longing to  her;  she  always  retained  possession  of  the  note.  After  its 
maturity  the  son  surreptitiously  obtained  the  note  and  endorsed  it  to 
the  defendant,  who  paid  value.  Held  that  defendant  took  no  title  and 
plaintiff  might  recover  the  note  in  replevin.  Merrell  v.  Springer,  123 
Ind.  485,  24  N.  E.  258. 

Replevin  lies  for  non-assignable  land  script.  Bradley  v.  Gammelle. 
7  Min.  331;  for  an  insurance  policy.  Saling  v.  Bolander,  60  C.  C.  A. 
469,  125  Fed.  701;  for  a  banker's  pass-book.  Wegner  t'.  Second  Ward 
Bank,  76  Wis.  242,  44  N.  W.  1096.  Trover  will  not  lie  for  a  share  of 
stock  in  a  corporation;  the  declaration  should  describe  it  as  a  certificate 
evidencing  shares,  Neiler  v.  Kelley,  09  Pa.  St.  403;  but  see  Payne  t". 
Elliott,  54  Calif.  339.  Trover  lies  for  bank  notes  scaled  In  a  letter. 
Moody  V.  Keener,  7  Port.  218;  for  negotiable  Instruments,  Comparct  v. 
Burr,  5  Blf.  419;  for  a  newspaper  which  the  postmaster  refuses  to  de- 
liver. Teall  V.  Felton,  1  N.  Y.  537;  for  a  judgment,  Hudspeth  r.  Wilson, 
2  Dev.  372;  for  a  promissory  note  which  has  been  paid.  Pierce  r.  riilson, 
9  Vt.  216;  not  if  payment  is  disputed.  Id.  For  copies  of  a  creditor's 
account,  Fullam  v.  Cummlngs.  16  Vt.  697;  for  a  wrl*  of  execution. 
Keeler  v.  Fassftt,  21  Vt.  539;  for  certincates  of  corporate  stock. 
Anderson  v.  Nicholas,  28  N.  Y.  GOO;  Atkins  v.  Gambol,  42  Calif.  «6, 
Van  Schmidt  v.  Bourn,  50  Id.  616;  Garvin  v.  WIbwcI,  83  Ills.  215;  AI<'X 
ander  v.  Rundle.  75  Id.  85;  for  a  policy  of  Instirance.  HayoB  v.  Mbhsu- 
cbusetts  Co.,  125  IIIb.  C2C.  Replevin  lies  for  a  locomotive,  HIIIb  v. 
Parker,  111  MasH.  508.  for  wild  kcckc  whbh  li!iv«-  bci-n  tlomcHtlcaled. 
Amory  v.  Flyn,  10  Johns.  102— not  for  uu  undivided  IntercHl.     HovfTcr 


26  THE    LAW    OF    REPLEVIN. 

wrongfully  taken  or  (letaini-tl/     Thougli  judgment  for  damages 

V.  Agee,  9  Colo.  Ap.  1S9,  47  Pac.  973:  Sharp  v.  Johnson,  3^  Ore.  246,  63 
Pac.  485.  Execution  sale  of  a  portion  of  a  mass  of  unpressed  hay  or 
the  like,  without  separation,  or  delivery  of  any  part  will  ndt  sustain 
replevin.     Lawry  v.  Ellis,  85  Me.  500,  27  Atl.  518. 

But  replevin  lies  for  an  undivided  share  in  a  quantity  or  mass  of 
the  same  character  and  value  so  that  the  plaintiff's  part  can  be  ascer- 
tained by  measurement.  Fines  v.  Bolin,  36  Neb.  62L  54  N.  W.  990. 
Properties  pertaitiing  to  a  public  office:  The  title  to  an  office  cannot 
be  tried  in  this  action.  Replevin  will  not  lie  by  a  claimant  against  the 
incumbent,  for  the  properties  pertaining  to  the  office.  Halgren  v. 
Campbell,  82  Mich.  255,  46  N.  W.  SSL  Body  of  a  deceased  person:  Re- 
plevin will  not  lie  by  the  widow  or  next  of  kin  of  deceased,  to  recover 
the  corpse.  Keyes  v.  Konkel,  119  Mich.  550,  78  N.  W.  649,  Buchanan  v. 
Buchanan,  28  Misc.  261,  59  N.  Y.  Sup.  810:  the  next  of  kin  and  not 
the  executor  has  the  right  of  burial.  Renihan  v.  Wright,  125  Ind. 
536,  24  N.  E.  822;  co7itra.  in  the  absence  of  a  statute,  Enos  v.  Snyder, 
131  Calif.  68,  63  Pac.  170.  The  right  of  the  surviving  husband  or 
wife,  residing  with  the  consort  at  time  of  death,  is  paramount  to  that 
of  the  next  of  kin,  Larson  v.  Chase,  47  Min.  307,  50  N.  W.  238;  and  see 
Hackett  v.  Hackett,  18  R.  L  155,  26  Atl.  42,  where  the  question  is 
learnedly  discussed  and  many  decisions  cited;  and  see  also  articles 
10  Cent.  L.  J.  303,  32  Am.  L.  Rev.  278,  O'Donnell  v.  Slack,  123  Calif. 
285,  55  Pac.  906.  A  grandmother  with  whom  an  orphan  grandchild  re- 
sides at  the  time  of  death,  has  the  legal  right  of  burial  and  she  may 
unite  with  her  in  an  action  for  an  unwarranted  interference  with  the 
right,  a  minor  brother  of  the  decedent,  Wright  v.  Hollywood  Associ- 
ation, 112  Ga.  884,  38  S.  E.  94. 

Buildings,  fixtures.  Generally.  Replevin  lies  for  a  building  which 
has  been  detached  from  the  land.  Weed  v.  Hall,  101  Pa.  St.  592.  If  the 
owner  of  a  house  sells  it  separate  from  the  land,  neither  he  nor  those 
claiming  under  him  can  afterwards  assert  title  to  it.  Myrick  v.  Bill, 
3  Dak.  284,  17  N.  W.  268;— even  though  the  building  is  not  removed. 
If  the  building  be  not  actually  severed,  the  purchaser's  remedy  is 
not  replevin.  Eddy  v.  Hall,  5  Colo.  576,  Dorr  v.  Dudderar,  88  Ills.  107; 
— but  in  Gill  v.  De  Armant,  90  Mich.  425,  51  N.  W.  527,  the  vendee 
of  lands  having  unlawfully  removed  machinery  from  a  mill  situate 
thereon  and  set  it  up  in  his  own  mill,  bolting  it  to  the  floor  and  using 
it  there  as  a  part  of  the  mill,  the  vendor  was  permitted  to  recover  it  in 
replevin.  An  organ  set  up  in  a  church  without  right  is  not  part  of  the 
church,  and  replevin  lies  by  the  owner.  Farrand  Company  v.  Board 
of  Church  Extension,  etc.,  17  Utah,  469,  54  Pac.  818.  Railroad  iron 
unlawfully  attached  by  wrong-doer  to  defendant's  lands  for  a  tempo- 
rary purpose,  may,  after  its  severance  by  defendant,  be  replevied  by 
the  owner,  Shoemaker  v.  Simpson,  16  Kans.  43.  And  machinery  af- 
fixed to  the  freehold  by  a  stranger,  without  authority  of  the  owner,  and 

'Herdic  v.  Young,  55  Pa.  St.  176. 


GENERAL    PRINCIPLES.  27 

usually   follows   a  judgment   for   the   proi>erty   as  a  matter  of 

in  such  manner  that  if  affixed  by  the  owner  it  would  pass  by  his  deed, 
but  so  that  it  may  he  detached  and  removed  without  material  injury 
to  the  freehold,  does  not  become  part  of  the  freehold,  Cochran  v. 
Flint,  57  N.  H.  514.  In  Byrnes  v.  Palmer.  113  Mich.  17,  71  N.  W.  331. 
the  plaintiff  was  permitted  to  recover  a  house  which  the  defendant 
had  unlawfully  removed  from  plaintiff's  premises  and  had  erected 
upon  his  own  premises;  plaintiff  was  also  allowed  to  recover  as 
damages  the  cost  of  replacement.  The  relations  of  the  parties  have 
much  to  do  with  the  effect  of  the  attachment  to  realty  of  things  before 
that  chattels.  The  rule  that  everything  attached  to  realty  becomes 
parcel  thereof  is  relaxed  between  landlord  and  tenant,  in  favor  of  the 
tenant;  and  in  favor  of  one  placing  machinery  for  the  purpose  of 
manufacture;  and  between  tenant  for  life,  and  the  remainderman; 
but  does  apply  in  all  strictness  as  between  landowner  and  tres- 
passer, and  as  between  vendor  and  vendee,  in  favor  of  the  latter. 
Union  Bank  v.  Wolf  Company,  114  Tenn.  255,  86  S.  W.  310.  Mere 
physical  annexation  is  no  longer  the  test,  but  the  intention  of  the 
party.  Vail  v.  Weaver,  132  Pa.  St.  363,  19  Atl.  138.  Docking  r.  Frazell. 
38  Kans.  420,  17  Pac.  160.  The  intention  of  the  owner  of  the  chattel 
and  the  uses  to  which  the  chattel  is  put,  must  concur,  to  transform  it 
into  realty,  Atchison  Company  v.  Morgan,  42  Kans.  23,  21  Pac.  8(i9. 
In  McDaniel  v.  Lipp,  41  Neb.  713,  60  N.  W.  81.  it  was  held  that  a 
house  erected  by  one  party  upon  the  lands  of  another,  and  partly 
in  a  public  alley,  by  mistake  of  the  boundaries,  not  permanently  at- 
tached, and  which  the  party  making  the  erection  regards  and  treats 
as  personalty,  remains  such,  though  the  owner  of  the  lot  upon  which 
it  is  partly  situate  moves  it  so  as  to  place  it  wholly  upon  his  premises, 
erects  brick  piers  under  it  and  makes  an  addition  to  it;  and  the  owner 
may  maintain  replevin.  And  if  a  building  wrongfully  severed  from 
lands  and  erected  upon  other  lands,  is  again  severed,  its  character 
as  a  chattel  is  restored,  and  the  owner  of  the  lands  from  which  It 
was  removed,  or  the  mortgagee  of  those  lands,  may  have  replevin. 
Dorr  V.  Dudderar,  88  Ills.  107.  And  see  Oskamp  v.  Krltes,  37  Neb. 
837.  56  N.  W.  394.  Many  things  may.  although  not  affixed  to  the  free- 
hold, come  within  the  category  of  fixtures;  e.  g.  the  rolls  of  a  mill,  the 
machinery  of  a  manufactory,  fast  or  loose,  necessary  to  constitute  a 
factory;  but  mere  loose  movables  about  such  an  establlslinicMit  will 
no  more  pass  with  it.  in  the  absence  of  a  usage  or  gcniral  timler.stand- 
ing.  than  would  the  tools  of  a  mechanic  by  the  sale  of  his  shop.  Carey 
V.  Bright,  58  Pa.  St.  70.  A  building  erected  by  the  tenant  upon  the 
demised  premises,  belongs  to  the  landlord.  Dougherty  v.  Spencer.  23 
Illfl.   Ap.    357. 

A  building  erectf'd  upon  another's  l.irid  by  his  consent,  and  under  an 
agreement  that  It  Kliall  belong  !o  the  builder.  Is  n  cli.ittcl.  Chicago  Co. 
V.  Ooodwln.  Ill  Ills.  27:J.  Curtis  v.  Kiddle.  7  Allen  18.'.;— otlH-rwise 
if  erected  by  a  trcHpasHer.     Id.     N'lchols  t-.  Potts,  71  N.  Y.  Sup.  7»;r.;  35 


28  THE    LAW    OF    REPLEVIN. 

course,  the  contest  is  about  the  specific  thing ;  the  recovery  of 

Misc.  273.  A  writing  from  the  landowner  is  not  necessary.  Taft  v. 
Stetson,  117  Mass.  471.  So  an  inclined  plane  connecting  a  railway 
with  mines  of  the  defendant,  located  i)artly  on  the  land  of  defendant, 
under  an  agreement  with  plaintiff  that  he  shall  have  the  use  of  it, 
for  a  specified  compensation  during  a  fixed  period,  Charlotte  Co.  v. 
Stouffer,  127  Pa.  St.  336,  17  Atl.  994.  A  dwelling  erected  with  the 
consent  of  the  owner  of  the  lands  that  the  one  erecting  it  may  do  as  he 
pleases  with  it.  is  a  chattel.  Adams  v.  Tully,  164  Ind.  292,  73  N.  E. 
595.  The  purchaser  of  the  lands  with  notice  of  all  the  facts  acquires 
no  title  to  the  house,  even  though  it  be  not  excepted  or  reserved  in 
the  deed.  Adams  v.  Tully,  supra.  The  owner  of  the  house  is  in  such 
case  entitled  to  remove  it  within  a  reasonable  time  after  the  sale 
of  the  lands,  Adams  v.  Tully,  supra.  But  it  has  been  held  that  a 
thing  which  cannot  be  removed  without  its  destruction,  e.  g.  a  brick 
house;  or  without  serious  injury  to  what  remains,  e.  g.  the  separate 
materials  of  a  building,  and  things  fixed  in  the  wall,  and  essential 
to  its  support,  may  not  by  agreement  be  transformed  from  realty  to 
personalty,  Ford  v.  Cobb,  20  N.  Y.  344.  In  order  that  things  affixed 
to  the  soil  shall  remain  personalty  by  agreement  of  the  party  making 
the  improvement,  he  must  have  the  right  to  determine  and  appoint; 
a  purchaser  of  land  cannot  as  against  the  vendor  who  retains  the  title, 
make  a  house  erected  upon  the  premises  personalty,  nor  remove  it, 
nor  confer  upon  another  who  has  notice  of  the  facts,  such  right;  the 
vendor  of  the  lands  may  replevy.  Ogden  v.  Stock,  34  111.  522,  85  Am. 
Dec.  332.  A  dwelling  which  is  occupied  by  a  tenant  cannot  be  re- 
plevied, even  although  the  tenant  is  holding  over  his  term.  The 
statutory  remedy  by  the  action  of  wrongful  detainer  is,  it  seems, 
exclusive,  McCormick  Co.  v.  Riewe,  14  Neb.  509,  16  N.  W.  832. 

Fixtures  unlawfully  severed  from  the  land,  the  owner  may  replevy, 
Kirch  V.  Davies,  55  Wis.  287.  Starting  a  building  from  its  place,  is 
a  severance,  and  the  owner  may  replevy  it.  Luce  v.  Ames,  84  Me.  133, 
24  Atl.  720.  It  is  not  admissible  in  replevin  for  a  house  to  litigate 
the  legality  of  a  tax  title,  under  which  the  premises  from  which  the 
house  was  removed,  were  at  the  time,  in  adverse  possession.  Rees  v. 
Higgins,  9  Kans.  Ap.  832,  61  Pac.  500.  Brick  built  into  the  wall  of  a 
courthouse  by  a  contractor,  become  part  of  the  freehold  and  the 
property  of  the  county,  and  remain  so  though  the  county  authorities 
terminate  the  contract,  and  by  other  contractors,  tear  the  wall  down 
for  reconstruction.  Moore  v.  Cunningham,  23  111.  328.  Mortgagee  of 
lands  not  in  possession,  though  default  has  been  made,  cannot  maintain 
replevin  for  the  thing  severed.  Kircher  v.  Schalk,  39  N.  J.  L.  335. 
Rails  affixed  to  the  roadbed  of  the  railway  are  a  part  of  the  railroad 
unless  there  be  an  agreement  to  the  contrary;  and,  in  spite  of  such 
agreement,  as  to  a  mortgagee  of  the  railway,  who  takes  without 
notice.  Hunt  v.  Bay  State  Company,  97  Mass.  279,  Meagher  v.  Hayes, 
152  Mass.  228.  25  N.  E.  105. 


GENERAL    PRINCIPLES.  29 

the  thing,  and  not  the  damages,  is  the  primary  object.*    The 

But  this  principle  has  no  application  in  the  case  of  a  street  railway 
laid  in  the  public  street.  The  railway  company  in  such  case  gains 
neither  freehold  nor  easement  in  the  soil,  nor  exclusive  control  of 
the  highway,  nor  any  other  interest  in  the  land  of  which  the  rails 
can  form  a  part;  and  like  gas  and  water  pipes,  poles  and  wires  for 
conveying  electricity,  they  remain  personalty.  Lorain  Company  v. 
Norfolk  Company,  187  Mass.  500,  73  N.  E.  646.  See  however,  Tudor 
Iron  Works  v.  Hitt,  49  Mo.  Ap.  472.  A  cotton  screw  wrongfully  detached 
from  the  property  of  another  is  personalty.  Wood  v.  McCall,  67  Ga. 
506; — so  a  lathe  which  is  a  necessary  part  of  the  machinery  of  a 
factory.  Green  v.  Chicago  Co.,  8  Kans.  Ap.  611,  56  Pac.  136.  The 
machinery  and  fixtures  of  an  electric  lighting  plant,  placed  in  a  build- 
ing temporarily,  are  personalty.  The  purchaser  thereof,  upon  execu- 
tion sale,  may  maintain  replevin  against  the  purchaser  at  a  fore- 
closure sale  of  the  lands.  Vail  v.  Weaver,  132  Pa.  St.  363,  19  Atl.  138. 
Replevin  lies  for  window  curtains,  screens,  screen-doors,  gaslight  pic- 
tures, gas  and  electric  globes;  such  articles  do  not  pass  by  a  mortgage 
of  the  lands.  Hall  v.  Law  Guarantee  Co.,  22  Wash.  305,  60  Pac.  643. 
Materials  collected  for  a  new  building  are  movables  until  actually 
used.  Beard  v.  Duralde,  23  La.  An.  284.  A  ferry  boat  and  the  chain 
by  which  it  is  attached  to  an  island,  and  the  buoys  supporting  the 
chain  are  no  part  of  the  realty.  Cowart  v.  Cowart,  3  Lea.  57.  A 
boiler  resting  upon  blocks  and  not  yet  lowered  to  the  foundation  pre- 
pared for  it  is  a  chattel.  Hacker  v.  Monroe,  56  111.  Ap.  533;  the 
filing  of  a  claim  of  lien  for  the  price  will  not  affect  the  question,  no 
suit  to  enforce  the  lien  being  prosecuted.  Id.  Replevin  will  not  lie 
for  hay,  grown  and  harvested  by  defendant  on  land  In  his  posses- 
sion, under  claim  of  title.  Page  v.  Fowler,  28  Calif.  605,  Renick  v. 
Boyd,  99  Pa.  St.  555.  Wheat  raised  under  an  invalid  lease  of  land  may 
be  recovered  from  the  officer  who  has  taken  it  on  execution  against 
the  lessor.  Burchett  v.  Hamil.  5  Okla.  300,  47  Pac.  1053.  Fixtures, 
between  vendor  and  vendee.  Vendee  of  lands  in  possession  may  law- 
fully sell  or  dispose  of  a  house  which  he  has  erected  upon  the  premises, 
although  he  is  in  default  in  the  purchase  money,  and  the  contract 
of   purchase   provides   that   in   such   case,   vendor  shall    be   entitled   to 

"  the  immediate  possession  of  the  premises and  with  all 

improvements."  The  vendor  of  the  land  cannot  in  such  case  recover 
the  house  from  the  purchaser  thereof,  Ellsworth  r.  McDowell,  44  Neb. 
708,  62  N.  W.  1082,  Northrop  v.  Trask.  39  Wis.  515;— but  8«'e  Cutter  v. 
Wait.  131  Mich.  508,  91  N.  W.  753,  where  it  was  held  that  a  house 
erected  by  the  vendee  and  removed  before  payment  of  the  purchase 
price,  may  be  replevied  by  the  vendor;  though  otlwrwlHe  If  the  pur- 
chaser haH  lK?en  induced  to  make  the  purchase  of  the  house  by  fraudu- 
lent miHrepreHentations  of  the  owner  of  the  landH.     A   house  ero<:tcd 


•Hunt  V.  Robinson,  11  Gal.  262;  Nlckerson  v.  Chattcrlon.  7  Cal.  568; 
Buckley  v.  Buckley,  12  Nevada,  423. 


30  THE    LAW    OF    REPLEVIN. 

secondary  object  is  to  recover  a  sum  of  money  which  shall  be 

upon  the  premises  of  another  under  an  agreement  of  purchase  with 
the  agent  of  the  owner,  which  the  owner  has  refused  to  ratify,  may 
be  replevied.  Waters  v.  Reuber,  16  Neb.  99,  19  N.  W.  687;  and  a  frame 
building  set  upon  a  stone  foundation  by  the  authorities  of  a  county, 
under  a  verbal  agreement  of  purchase  which  the  owner  of  the  lands 
refuses  to  consummate,  Board  of  Commissioners  of  Rush  Co.  v. 
Stubbs,  25  Kans.  322.  But  upon  conditional  sale  of  a  grain  elevator 
and  a  warehouse,  with  certain  machinery,  all  situate  upon  premises 
leased  of  a  third  person,  there  being  no  express  reservation  of  the 
title,  but  the  sale  being  defeasible  for  the  non-payment  of  any  in- 
stallment of  the  purchase  money  at  the  day  stipulated,  it  was  held 
that  the  vendor  could  not,  for  default  in  the  conditions  of  the  sale, 
maintain  replevin  for  the  things  so  sold,  even  although  admitted  to  be 
chattel  property;  because  (1),  the  writ  would  operate  in  effect  as 
a  writ  of  restitution  of  lands;  and  because  (2)  the  equities  of  the 
parties  could  not  be  adjusted  in  such  action.  The  vendor  had  not 
returned  or  tendered  the  part  payment  received  and  the  last  remark 
of  the  court  has  reference  to  this.  Oskamp  v.  Crites,  37  Neb.  837,  .56 
N.  W.  394.  Parties  holding  an  option  to  purchase  mining  premises, 
erected  a  whim,  railway  track  and  other  improvements,  in  order 
to  assist  in  the  development  of  the  mine,  and  to  determine  whether 
they  would  avail  themselves  of  the  option;  these  improvements  were 
removable  without  injury  to  the  estate.  The  option  required  that 
the  mine  should  be  Ivept  free  of  any  lion;  there  was  no  provision 
that  the  owner  should  retain  improvements.  Held  that  the  things 
in  question  were  chattels,  and  a  license  to  remove  them  was  implied. 
Alberson    v.  Elk  Creek  Co.,  39  Ore.  552,  65  Pac.  978. 

Buildings  and  Fixtures,  as  between  Vendor  of  Chattel  and  Land- 
Owner.  Mantel-pieces  sold  conditionally  by  writing  recorded  in  com- 
pliance with  the  statute,  remain  personalty,  though  set  up  in  the  build- 
ing of  the  purchaser.  Nichols  v.  Potts,  35  Misc.  273,  71  N.  Y.  Sup. 
765,  citing  Duffus  v.  Furnace  Co.,  8  App.  Div.  567,  40  N.  Y.  Sup.  925. 
In  Jermyn  v.  Hunter,  93  Ap.  Div.  175,  87  N.  Y.  Sup.  546,  it  was  held 
that  a  boiler  sold  to  a  contractor  for  the  erection  of  a  building  then 
in  course  of  construction,  and  which  was  by  him  erected  and  placed 
in  such  building  on  a  permanent  foundation,  was  parcel  of  the 
land,  even  though  in  the  sale  of  the  boiler  the  vendor  expressly 
reserved  the  title  until  full  payment  of  the  price,  and  payment  had 
not  been  made,  the  owner  of  the  building  having  no  notice  of  this 
reservation.  Held  further  that  the  owner  of  the  building  could  not 
be  charged  with  the  value  of  the  boiler,  citing  Potter  v  Cromwell, 
40  N.  Y.  287,  McRea  v.  Central  Bank,  06  N.  Y.  489,  Andrews  v.  Powers, 
66  Ap.  Div.  216,  72  N.  Y.  Sup.  597,  and  distinguishing  Ford  v.  Cobb,  20 
N.  Y.  344,  Tift  v.  Morton,  53  Id.  377.  In  Hobson  v.  Gorringe,  1  Ch. 
182,  75  L.  T.  R.  610,  it  was  held  that  a  gas  engine  sold  conditionally, 
and  for  which  payment  had  not  been  made,  but  which  had  been  affixed 


GENERAL    PRINCIPLES.  31 

equivalent  to  the  value  of  the  property  sued  for,  in  case  the 

to  the  freehold  of  the  nurchaser  by  bolts,  was  a  fixture  and  passed 
under  the  mortgage,  as  between  the  vendor  of  the  title  and  a  subse- 
quent mortgagee  of  the  land,  without  notice  of  the  conditional  char- 
acter of  the  sale  of  the  machine.  And  see  Reynolds  v.  Ashby,  91  L.  T. 
R.  607,  cited  39  Am.  L.  Rev.  611.  Union  Bank  v.  Wolf  Co..  114  Tenn. 
255,  86  S.  W.  310.  Between  Mortgagor  and  Mortgagee.  A  boiler,  engine 
and  printing  presses  erected  upon  mortgaged  lands  by  the  mortgagor, 
and  intended  as  part  of  the  establishment,  the  presses  connected  with 
the  boiler  by  bolts,  and  resting  by  their  own  weight  upon  foundations 
especially  prepared  for  them,  are  part  of  the  realty  as  between  mort- 
gagor and  mortgagee,  Otis  v.  May,  30  Ills.  Ap.  581;  and  see  Jones  r. 
Bull,  85  Tex.  136,  19  S.  W.  1031;— so  of  anything  placed  by  the  mort- 
gagee upon  the  mortgaged  premises  to  carry  out  the  purposes  for 
which  the  same  are  occupied,  and  permanently  increase  their  value 
for  use,  even  though  the  thing  may  be  removed  without  injury  to 
itself  or  to  the  building;  as  platform  scales,  set  in  the  floor  of  a  manu- 
factory, or  outside  of  the  building;  or  hydraulic  presses;  or  print- 
ing machines,  each  standing  upon  a  foundation  constructed  for  it; 
an  indigo  mill  or  dyeing  machine  similarly  attached,  Southbrldge 
Bank  v.  Mason.  147  Mass.  500,  18  N.  E.  406,  Butler  v.  Page.  7  Mete. 
40,  Wright  v.  Gray,  73  Me.  297.  If  the  mortgagee  in  possession  fells 
trees  or  sells  buildings  standing  upon  the  mortgaged  premises,  the 
administrator  of  the  mortgagor  cannot  maintain  trover,  Place  v. 
Sawtel,  142  Mass.  477,  8  N.  E.  343; — a  building,  resting  by  its  own 
weight  on  flat  stones  laid  upon  the  surface  of  the  ground,  is  not  a 
fixture,  but  personalty,  Carlin  r.  Ritter,  68  Md.  478.  Mortgage  of  a 
boiler  and  engine,  stipulating  that  they  shall  remain  chattels,  takes 
precedence  of  a  prior  mortgage  of  lands  where  they  are  after- 
wards erected.  Tift  v.  Horton,  .03  N.  Y.  377.  A  and  B  form  a  co- 
partnership in  distilling,  A  to  furnish  a  certain  mill  with  machinery 
to  grind  the  grain,  B  to  furnish  the  mash  tub  and  fermenting  tank.s; 
the  mash  tub  rested  upon  the  joists  of  the  third  story  floor,  the  mash 
therein  was  stirred  by  a  rake  fastened  to  the  roof;  the  fermenting 
tanks  were  placed  on  trestles  and  extended  through  apertures  cut 
in  the  floor  above;  all  were  parts  of  the  ai)paratus.  connected  with  it 
by  pipes  and  troughs,  and  necessary  to  the  conduct  of  the  business; 
they  were  removable  only  by  being  taken  in  pieces;  there  was  a 
parol  agreement  that  the  mash  tub  and  fermenting  tanks  should  n-- 
maln  the  property  of  B;  held,  that  this  agreement  affectcn  a  mort- 
gagee and  a  purchaser  of  the  mill  who  took  with  notice  Walker  r. 
Schlndel.  58  Md.  .'{60.  Trees  standing  upon  the  mortgaged  landH  are 
part  of  the  mortgagee's  8e<:urlty;  he  may  have  his  action.  If.  without 
hlH  assent,  the  mortgagor  severs  them.  Sanders  i-.  Ueed.  12  N.  H.  r»riK. 
Page  V.  Robinson,  10  Gush.  99.  Waterman  t'.  Malteson.  4  U.  I.  539;  — 
an,<l  Junior  mortgagee  may  recover  full  damageK.  If.  nlnce  llie  trespaHK, 
the  Benlor  mortgage  ban  been  BatlBfled.  /'/      The  mortKage*'  Ib  entitled 


32  THE    LAW    OF    REPLEVIN. 

property  itself  is  not  delivered  to  the  plaintiff  upon  the  writ ; 

to  take  and  hold  logs  cut  from  the  mortgaged  premises  without  his 
permission,  and  his  assignee  has  the  same  right  and  remedy;  neither 
the  wrong-doer  nor  his  vendee  can  recover.  Mosher  v.  Vehue,  77  Me. 
169.  In  Connecticut  the  mortgagor  in  possession  may  sever  fixtures 
and  confer  a  good  title  by  the  sale  thereof,  even  after  default  made. 
McKelvey  v.  Creevey,  72  Conn.  464,  45  Atl.  4;  otherwise  in  Maine, 
Mosher  v.  Vehue,  supra:  in  Vermont,  Langdon  v.  Paul,  22  Vt.  205;  in 
New  Hampshire,  Sanders  v.  Reid,  12  N.  H.  558;  in  Rhode  Island, 
Waterman  v.  Matteson,  4  R.  I.  539;  Massachusetts,  South  Bridge  Bank 
V.  Mason.  147  Mass.  500,  18  N.  E.  406;  in  New  Jersey,  Kircher  v.  Schalk, 
39  N.  J.  L.  335.  A  purchaser  of  growing  trees  from  one  in  possession 
of  lands,  vested  with  the  record  title,  and  who  severs  them  pursuant 
to  his  purchase,  is  preferred  to  a  prior  unrecorded  mortgage;  it  is 
immaterial  in  such  case  that  the  purchase  was  by  simple  contract, 
Banton  v.  Shorey,  77  Me.  48.  Between  landlord  and  tenant.  A  ten- 
ant must  remove  his  fixtures  during  the  term; — if  he  accept  a  new  lease 
without  reserving  therein  the  right  to  remove,  the  right  of  removal 
is  lost.  Carlin  v.  Ritter,  68  Md.  478; — otherwise  if  he  holds  over  under 
circumstances  creating  an  implied  renewal,  Darrah  v.  Baird,  101  Pa. 
St.  265;  and  the  fixtures  remain  part  of  the  freehold,  until  and  unless 
severed  by  the  tenant,  or  by  those  who  hold  under  him.  Id.  If  the 
tenant  becomes  bankrupt,  and  the  assignee  surrender,  the  right  of 
removal  is  lost,  Id.  A  tenant  erects  a  building  upon  the  demised 
premises  and  surrenders  possession,  reserving  the  building,  and  the 
landlord  agrees  that  the  tenant  may  remove  it  at  his  pleasure;  the 
landlord  afterwards  lets  the  building  to  another  tenant,  and  when  the 
first  tenant  demands  it,  refuses  the  demand; — held  the  house  is 
personalty,  the  landlord's  agreement  to  its  removal,  though  verbal  is 
valid,  and  the  landlord  is  liable  for  the  value  of  the  building  on  the 
day  of  the  demand,  with  interest,  Neiswanger  v.  Squier,  73  Mo.  192. 
A  steam  engine  erected  by  the  tenant  upon  the  leasehold,  not  intended 
as  a  permanent  attachment,  and  which  can  be  removed  without  injury 
to  the  soil,  is  a  chattel  and  may  be  replevied  by  the  mortgagee  of  the 
tenant,  from  the  landlord.  Hewitt  v.  Watertown  Co.  65  111.  App.  153. 
Sale  of  the  leasehold  on  execution  against  the  tenant  passes  title 
with  the  fixtures  situated  thereon.  If  the  tenant  sever  them  the 
purchaser  may  have  replevin.  McNally  v.  Connolly,  70  Calif.  3,  11 
Pac.  320.  If  a  tenant  surrender  his  term,  his  right  in  trade  fixtures  is 
gone;  a  subsequent  mortgage  by  the  tenant,  though  for  the  purchase 
money  of  the  fixtures,  and  in  pursuance  of  a  precedent  verbal  promise, 
is  without  effect  as  against  the  landlord.  Fuller  v.  Brownell,  48  Neb. 
145,  67  N.  W.  6.  Where  there  are  several  estates  in  land,  he  who 
has  the  first  estate  of  inheritance  becomes  the  general  owner  of  what- 
ever is  wrongfully  severed;  if  there  be  a  tenant  for  life  without 
impeachment  of  waste,  and  the  thing  is  such  as  he  might  have  right- 
fully   severed,    he    becomes    the    owner    and    may    maintain    replevin. 


GENERAL    PRINCIPLES.  33 

compensation  for  the  injury  which  the  plaintiff  has  sustained  by 

Kircher  v.  Schalk,  39  N.  J.  L.  335;  or  he  who  has  the  actual  or 
constructive  possession  accompanied  by  an  interest  in  the  land  at 
the  time  of  the  severance.  /(/.  Machinery  so  attached  to  the  premises 
as  to  become  parcel  of  it,  if  so  placed  by  the  owner  in  fee,  is  mere 
fixtures  when  so  placed  by  the  life  tenant.  Overman  v.  Sasser,  107 
N.  C.  432, 12  S.  E.  64,  10  L.  R.  A.  722.  Fences.  By  statute,  adjoining 
landowners  may  agree  to  build  and  maintain  certain  portions  of  a 
division  fence;  where  a  fence  is  so  constructed  the  materials  remain 
the  property  of  him  who  performs  the  work  of  construction,  and  if 
severed  he  may  maintain  replevin,  Moore  v  Combs,  24  Ind.  Ap.  464, 
56  N.  E.  35.  A  fence  located  by  mistake  upon  the  lands  of  an  adjoin- 
ing proprietor;  doubted  if  the  party  loses  his  title  until  after  the 
lapse  of  a  sufficient  time,  succeeding  the  discovery  of  the  mistake,  in 
which  to  remove  it.  Hobbs  v.  Clark,  53  Ark.  411,  14  S.  W.  652,  and 
see  Atcheson  Co.  v.  Morgan,  42  Kans.  23,  21  Pac.  809.  Trees,  ores, 
etc.  A  tree  is,  it  seems,  wholly  the  property  of  one  upon  whose  land 
the  trunk  stands,  though  the  roots  extend  to  the  lands  of  another 
proprieter,  Dubois  v.  Beaver,  25  N.  Y.  123; — logs  cut  from  land,  are 
the  property  of  him  who  owns  the  land  at  the  date  of  the  severance. 
Stahl  V.  Lynn,  81  Wis.  GC8,  51  N.  W.  879.  Replevin  lies  for  lumber 
manufactured  from  logs  cut  by  a  wrong-doer — though  under  color  of 
a  license.  Mine  Lamotte  Co.  v.  White,  106  Mo.  Ap.  222,  80  S.  W.  356. 
Bona  fide  possession  under  an  adverse  claim  will  not  preclude  an 
investigation  of  the  title.  McKinnon  v.  Meston,  104  Mich.  642,  62  N. 
W.  1014.  The  defendant  made  forcible  entry  upon  enclosed  and  im- 
proved premises  in  occupation  of  the  plaintiff,  broke  down  his  fences 
and  assumed  forcible  possession;  he  afterwards  entered  the  lands 
under  the  preemption  laws  of  the  United  States;  held  that  notwith- 
standing his  adverse  claim  plaintiff  might  maintain  replevin  for  the 
hay  cut  by  him  upon  the  land.  Laurendeau  v.  Fugelli,  1  Wash.  559, 
21  Pac.  29,  5  Wash.  94.  632,  31  Pac.  421.  But  in  Rees  v.  Higgins.  9 
Kans.  Ap.  832,  61  Pac.  500,  it  was  held  that  in  re|)levin  for  a  house 
which  the  defendant  had  severed,  under  claim  of  title,  his  right  could 
not  be  adjudicated.  Replevin  lies  for  ores  extrat-ted  by  a  trespasser 
from  a  mine  situate  in  another  state,  Hoy  v.  Smith.  49  Barb.  360; 
and  if  sand  be  removed  by  a  trespasser  from  the  premises  where  It 
is  found,  it  becomes  at  once  personalty,  and  trover  lies,  or  replevin.  In 
any  jurisdiction  to  which  It  may  ix-  carried.  .McCionlgle  t'.  Atchison. 
33  Kans.  726,  7  Pac  5.'>0.  But  In  American  Co.  v.  MIddleton,  80  N.  Y. 
408.  It  was  held  that  the  only  action  maintainable  was  trespasH,  q.  c.  f.. 
and  that  no  matter  where  the  conversion  of  the  thing  severed  occHrs. 
the  action  will  He  only  In  the  jurisdiction  In  which  the  land  Is  Bituate. 
In  P'orsythe  v.  Wells,  41  Pa.  St.  291.  trover  was  entertained  for  real 
torllously  mined  upon  plaintiffs  laml.  (Jrowlng  tn'es  hflnK  part  of 
the  really  any  attempted  sale  of  the  tree  or  tlie  rlnht  to  fell  It  niusl 
observe  the  requirements  ot  the  statute  of  frauds,  Mine  Laraollo  Co. 
3 


34  THE    LAW    OF    REPLEVIN. 

the  wrongful  detention  of  his  goods  is  also  recoverable,  as  in 

i\  White,  supra.  The  writing  need  not  be  sealed.  Warren  v.  Leland, 
2  Barb.  (;13;  but  in  Andrews  i'.  Costican,  30  Mo.  Ap.  29,  it  was  held  that 
an  unsealed  writing  of  sale,  not  acconi])anied  by  possession  or  sever- 
ance, docs  not  pass  the  title  to  standing  trees;  and  the  holder  of  such 
writing  may  not  obtain  replevin,  for  logs  afterwards  severed  from 
the  land.  A  writing  agreeing  to  bargain  and  sell  the  standing  timber 
on  certain  lands  passes  a  present  interest;  so  of  an  assignment  by 
one  of  "  his  right  to  the  pine  timber "  on  certain  lots.  Warren  v. 
Leland,  supra.  Forthwith  upon  the  execution  of  such  a  writing  by 
the  owner  of  lands,  the  trees  become  in  law  personalty.  Id.  A 
license  to  cut  the  timber  from  lands  vests  no  title  until  actual  sever- 
ance; but  if  the  trees  are  felled  by  a  trespasser,  the  license  being 
unrevoked,  the  licensee  may  at  once  bring  replevin.  Keystone  Co.  v. 
Kolman,  94  Wis.  465,  69  N.  W.  165.  A  mere  license  to  dig  for  ore 
confers  no  title  until  severance;  and  if  the  owner  of  the  land  himself 
severs,  the  title  is  in  him,  and  not  in  the  licensee.  Gillett  v.  Treganza, 
6  Wis.  344.  A  landowner  consented  to  donate  the  right  of  way  for 
a  public  road,  on  condition  that  the  road  commissioners  would  pay 
the  value  of  the  timber  cut,  and  that  opportunity  should  be  afforded 
him  to  estimate  the  amount  before  the  trees  should  be  felled;  held, 
the  title  to  the  trees  did  not,  by  this  consent  pass,  until  compliance 
with  the  conditions  prescribed.  Keweenaw  Association  v.  O'Neil,  120 
Mich.  270,  79  N.  W.  183.  The  purchaser  from  a  trespasser  cannot 
recover  logs,  cut  from  public  lands,  as  against  a  purchaser  from  the 
state,  even  though  the  proceedings  attending  the  sale  by  the  state 
appear  to  be  irregular,  Raber  v.  Hyde,  Mich.  101  N.  W.  61.  The  bare 
possession  of  land  under  claim  of  title,  is  sufficient  to  entitle  posses- 
sor to  maintain  replevin  for  logs  cut  by  one  who  enters  forcibly  upon 
such  possession,  though  under  claim  of  title.  Loveman  v.  Clark,  114 
Tenn.  117,  85  S.  W.  258.  Deeds  may  be  examined  to  ascertain  the 
extent  of  the  possession  of  lands  from  which  logs,  the  subject  matter 
of  the  action,  were  cut.  Id.  Replevin  cannot  be  made  the  metans  of 
litigating  the  title  to  lands;  but  the  title  may  come  in  question  in- 
cidentally to  be  examined,  so  far  as  necessary  to  ascertain  in  whom 
was  the  possession,  and  by  consequence,  title  to  the  things  severed.  Id. 
Growing  crops.  At  the  common  law  the  fruit  of  trees  or  perennial 
bushes  or  grasses  growing  from  perennial  roots,  are,  while  unsevered 
from  the  soil,  considered  as  pertaining  to  the  realty;  e.  g.  blackberries; 
but  such  things  as  grains,  garden  vegetables,  and  the  like,  raised  by 
annual  manurance  and  labor,  are,  even  while  still  annexed  to  the  soil 
treated  as  chattels,  Sparrow  v.  Pound,  49  Minn.  412,  52  N.  W.  36. 
Growing  crops  are  a  chattel.  Davis  v.  McFarlane,  37  Calif.  654,  Stall. 
V.  Wilbur,  77  N.  Y.  158.  But  they  pass  by  the  conveyance  of  the 
lands,  Stall  v.  Wilbur,  supra.  One  who  recovers  land  in  ejectment 
may  have  replevin  for  the  crop  grown  and  harvested  thereon  pending 
the  action,  by  a  tenant  who  had  notice  of  it,  Rowell  v.  Klein,  44  Ind. 


GENERAL    PRINCIPLES.  35 

cases  when  the  goods  themselves  are  recovered.'  It  may  be  said 
to  be  the  proper  form  of  action,  in  all  cases  where  the  plaintiff, 
having  a  general  or  special  property,  with  the  right  to  the  imme- 
diate possession  of  chattels  personal  whicli  are  wrongfully  de- 
tained by  another,  desires  to  recover  the  specitie  goods,  and  this 
without  reference  to  whether  they  were  wrongfully  taken  or  not. 

290.  Crops  planted  by  an  intruder  upon  lands,  are  the  property  of 
the  landowner.  Baker  v.  Mclnturff.  49  Mo.  Ap.  505.  But  in  Missouri 
it  seems  the  conveyance  of  lands  does  not  pass  title  to  the  crops  grow- 
ing thereon.  Edwards  v.  Eveler,  84  Mo.  Ap.  405;  and  in  McAllister  v. 
Lawler,  32  Mo.  Ap.  91,  H  was  held  that  one  in  actual  possession  of 
lands,  no  matter  in  what  capacity,  cannot  by  the  landowner  be  de- 
prived of  the  crop  which  he  has  planted,  matured  and  severed.  And 
the  product  of  lands  grown  and  harvested  by  one  in  adverse  posses- 
sion, though  without  color  of  title,  cannot  be  replevied  by  the  true 
owner  of  the  lands,  Martin  v.  Thompson.  62  Calif.  618,  45  Am.  Rep. 
663.  But  mortgagee  of  lands  is  entitled  to  the  crop  planted  after 
foreclosure  sale,  and  standing  ungathered  when  the  deed  passes. 
Foss  V.  Marr,  40  Neb.  559,  59  N.  W.  122,  Rankin  v.  Kinsey,  7  111.  Ap. 
215.  And  see  Hall  v.  Durham,  117  Ind.  430,  20  N.  E.  282.  And  whether 
planted  before  or  after  the  execution  of  the  mortgage,  until  severance, 
the  mortgage  binds  both  the  land  and  the  crop,  not  only  as  against  the 
mortgagor  but  as  against  all  claiming  under  him  subsequent  to  the 
record  of  the  mortgage.  Yates  v.  Smith,  11  111.  Ap.  459.  See  Sieffert 
V.  Campbell,  24  Ky.  L.  Rep.  1050,  70  S.  W.  630,  Tittle  v.  Kennedy,  71 
S.  C.  1,  50  S.  E.  544.  But  the  sheriff's  deed  on  foreclosure  does  not 
pass  the  crop  of  mortgagor's  tenant  then  matured  and  ready  for  the 
harvest.  Hecht  v.  Bettman,  56  la.  679.  7  N.  W.  495,  10  N.  W.  241. 
Porche  v.  Bodin.  28  La.  An.  761.  And  purchaser  at  foreclosure  sale 
is  not  entitled  to  the  crop  grown  by  a  tenant,  even  though  his  lease 
were  granted  after  the  record  of  the  mortgage,  and  the  crop  was  not 
harvested  until  the  mortgagor's  right  of  redemjition  had  expired.  Ault- 
man  v.  O'Dowd,  73  Minn.  58,  75  N.  W.  756.  Corn  ungathcrcd  in  the 
field,  belonging  partly  to  the  tenant  and  partly  to  tlu'  landlord,  but 
undivided,  the  assignee  of  the  tenant  cannot  maintain  replevin.  The 
reason  assigned  by  the  court  is  that  no  division  is  practicable  In  Its 
then  condition.  Jones  v.  Dodge.  61  Mo.  368;  but  In  Garth  v.  Caldwell, 
72   Mo.    622,    it   was   held    that   corn    in    the   Btulk   may    be    replevied 

•Ellis,  Admr.  of  Pritchard.  v.  Culver.  2  Harr.  (Del.)  129;  Han  t>. 
Fitzgerald,  2  Mass.  509;  Bruen  r.  Ogden.  6  Halst.  (N.  J.)  371;  Buckley 
V.  Buckley.  12  Nevada,  426;  Yates  i'.  Fassett,  5  Dcnlo,  21;  Burr  r. 
Daugherty.  21  Ark.  559;  Gray  r.  Nations.  1  Ark.  559;  Whitllrld  v.  Whit- 
field. 40  MlHB.  352;  Broadwatir  t'.  Darne,  10  Mo.  278;  Loomls  v.  Tyler,  4 
Day.  (Conn.)  141;  Frazlcr  v.  Fredericks.  4  Zab,  (N.  .1.)  163;  Smith  v. 
Houston,  25  Ark.  ISJ;  I'arham  r.  Ulley.  1  ("oldw.  (Ttnu.)  5;  Stevens  r. 
Tulte,  104  Mass.  332. 


36  THE    LAW    OF    REPLEVIN. 

Tlie  wrongful  detention  of  another's  goods  will  general!}',  under 
the  statutes  and  decisions  in  this  countr}',  render  the  defendant 
liable  in  this  action.' 

§  o4.  It  is  a  mixed  action,  partly  in  rem  and  partly  in 
personam.  It  is  a  mixed  action,  being  not  only  for  specific 
articles  but  for  damages  which  the  taking  and  detention  has 
occasioned.'*  It  is  a  proceeding  partly  in  rem  and  partly  ifi  per- 
sonam. Insomuch  as  it  seeks  the  return  of  specific  chattels  it  is 
a  proceeding  in  rem,  resembling  a  libel  in  a  court  of  admiralty, 
both  parties  being  claimants ;  ®  and  so  far  as  the  object  is  to 
obtain  a  judgment  against  the  defendant  for  damages  is  a  pro- 
ceeding in  personam,^"  and  can  be  brought  only  against  the  person 
having  possession  or  control  of  the  goods  at  the  time  the  suit  is 
begun.  The  writ  in  addition  to  the  order  for  delivery,  contains 
a  summons  to  the  defendant,  and  if  the  plaintiff  does  not  obtain 
delivery  of  the  goods  upon  the  writ,  he  may  have  judgment  for 
the  value  against  the  defendant  personally." 

§  35.  The  writ  is  a  writ  of  right.  By  the  common  law  the 
writ  was  a  writ  of  right,  not  of  grace  or  favor,"  and  in  most  of 
the  states  the  common  law  is  recognized  as  the  foundation  of  the 
action,  the  statutes  only  adapting  the  remedy  to  the  wants  of 
modern  society." 

"Peirce  v.  Hill,  9  Port  (Ala.)  151;  Brooke  v.  Berry,  1  Gill.  (Md.) 
153;  Marston  v.  Baldwin,  17  Mass.  609;  Paul  v.  Luttrell,  1  Colorado, 
317;  Brownell  v.  Manchester,  1  Pick.  233. 

*  Fisher  v.  Whoollery,  25  Pa.  St.  197;  Herdic  v.  Young,  55  Pa.  St.  176. 

"Brown  v.  Smith,  1  N.  H.  38;  Wheeler  v.  Train,  4  Pick.  168;  Fletcher 
V.  Wilkins,  6  East.  283;  Sharp  v.  Whittenhall,  3  Hill,  (N.  Y.)  576; 
Eaton  V.  Southby,  Willes,  131;  Baldwin  v.  Cash,  7  Watts  &  S.  425; 
Lowry  v.  Hall,  2  W.  &  S.  (Pa.)  132. 

'"Ramsdell  v.  Buswell,  54  Me.  547;  Burr  v.  Daugherty,  21  Ark.  559; 
Daggett  V.  Robins,  2  Blackf.  (Ind.)  416;  Stevens  v.  Tuite,  104  Mass. 
332. 

"Bower  v.  Tallman,  5  W.  &  S.  (Pa.)  561.  In  some  of  the  states  the 
plaintiff  may  file  a  count  in  trover  for  such  goods  as  the  officer  returns 
he  cannot  find,  but  in  most  of  the  states  the  value  of  the  chattels  is 
given  in  the  form  of  damages  in  the  replevin  suit.  See  Greenwade  v. 
Fisher,  5  B.  Mon.  (Ky.)  167.  In  Minnesota  it  was  held  so  far  a  pro- 
ceeding in  rem  before  a  justice  of  the  peace  that  delivery  of  the  goods 
was  necessary  to  give  jurisdiction,  and  that  upon  a  return  of  "  no  prop- 
erty found  "  the  justice  could  not  proceed.  St.  Martin  v.  Desnoyer,  1 
Minn.  41. 

'^Anon.  2  Atk.  237. 

"Chadwick  v.  Miller,  6  Iowa,  34. 


GENERAL    PRINCIPLES.  37 

§  36.  Form  of  proceeding  in  different  states  substan- 
tially the  same.  So  far  as  ils  name  i.^  conet'iTic'd  ihi.saciiitii  ha.s 
been  abolished  in  nio.st,  it'  not  all,  of  the  states  which  have 
adopted  a  code.'*  It  was  never  recognized  in  Alabama.'*  It  ob- 
tained a  foothold  in  Mississippi  only  after  a  struggle.'*  In  Con- 
necticut and  Vermont  it  was  formerly  allowed  only  in  cases  of 
distress  and  attaclnnent.'"  In  South  Carolina  the  writ  would  only 
lie  for  a  distress.'^  In  \'irginia  it  was  abolished  by  statute,  ex- 
cept in  cases  of  distress.''-*  In  Louisiana,  where  the  civil  law  pre- 
vails, the  writ  is  unknown  ;  and  the  same  may  be  said  of  Texas. 
But  in  states  adopting  a  code,  provisions  are  made  l)y  which 
substantially  the  same  results  are  reached.  This  is  done  by 
what  is  claimed  to  be  a  more  simple  and  equitable  proceeding, 
and  one  in  which  the  same  principles  apply .^  In  Alabama  the 
action  of  detinue  has  been  modified  and  made  to  serve  the  same 
purpose  as  replevin,  and  is,  in  fact  governed  by  the  same 
general  principles.-'  In  Georgia  the  writ  is  called  "  pos.sessory 
warrant,"  and  differs  somewhat  in  form  from  tlie  common  law 
writ,"  while  Louisiana  and  Texas  recognize  the  principles  which 

"  "  The  form  of  the  action  was  abolished  by  the  code,  but  the  princi- 
ples which  governed  it  remain,  and  now,  as  much  as  formerly,  control 
In  determining  the  rights  of  parties."  Eldridge  v.  Adams,  'jA  Barb.  417. 
To  the  same  effect,  Collins  r.  Hough,  26  Mo.  152;  Chadwick  v.  Miller,  6 
Iowa,  34. 

•'Smith  V.  Crockett,  Minor,  (Ala.)  277,  (1824);  Peirce  v.  Hill.  9 
Porter,  (Ala.)   15.^. 

'•In  Wheelock  r.  Cozzens,  G  How.  (Miss.)  281,  one  of  the  counsel  snys 
he  would  as  soon  expect  to  see  the  court  recognize  the  obsolete  remfvly 
of  wager  of  battle,  or  wager  of  law,  as  replevin.  See,  also,  a  similar 
remark  by  counsel  in  Virginia.  Nicolson  r.  Hancock,  4  Hen.  &  .M. 
(Va.)  491. 

"Watson  V.  Watson,  *)  Conn.  140;  Watson  v.  Watson.  10  Conn.  75. 
Against  the  attachment  creditor.s.  and  not  against  the  officer.  Bowen 
V.  Hatchings,  18  Conn.  r,5(i;  fJlover  v.  Chase,  27  Vt.  5:53. 

"Hewitson  v.  Hunt,  x  Rich.  (S.  C. )  10(].  See  CharlcKton  v.  Price.  1 
McCord,  299;  Byrd  r.  O'llanlin.  1  Mill.  (S.  C.)  401. 

"Valden  v.  Bell.  3  Rand.  ( Va. »   448. 

""The  name  replevin  is  much  more  convenient  and  KuggeHllve  to 
the  profession  than  that  adopted  by  the  code."  Ames  v.  MIhh.  Boom 
Co..  8  Minn.  4fi7.  See  Belkin  J  Hill.  53  Mo.  493;  PuIIh  r.  DearlnK,  7 
Wis.  221;  Porter  v.  WllUt.  14  Al)b.  Pr.  Rep.  319;  Collins  t'.  HouKh.  21". 
Mo.  149;  Chadwick  r.  .Miller.  «;  Iowa.  34. 

"  Pelrec  V.  Hill.  9  Porter.  (Ala.)  151;  I^WHon.  AdmrH  v.  Lay.  Exph  . 
24  Ala.  188. 

"MlllH  V.  Glover.  22  Geo.  322;   Stal.  Geo.  Title.  Pohh.  War. 


38  THE    LAW    OF    REPLEVIN. 

govern  actions  of  replevin  in  a  proceeding  by  seciuestration/'  In 
Vermont  and  Connecticut,  as  a  suit  to  try  the  title  to  i)roperty,  it 
has  only  been  allowed  within  a  comparatively  recent  period." 
In  Pennsylvania,  it  is  said,  the  action  rests  solely  upon  the  local 
statutes,  there  being  no  right  to  proceed  under  the  common  law 
or  the  Statute  of  Marlbridge,'"'''  though  the  common  law  principles 
apply.  But,  whether  they  be  of  ancient  or  modern  origin,  all 
laws  governing  actions  for  the  recovery  of  specific  personal 
chattels  can  best  be  discus.sed  under  the  title  of  replevin. 

§  37.  Peculiarities  of  the  action  ;  privileges  to  the  plain- 
tiff. There  are  some  peculiar  privileges  to  the  plaintiff  in  this 
action.  Upon  affidavit  being  filed  that  he  is  the  owner  of  the 
property  in  controversy,  and  entitled  to  its  immediate  possession, 
he  can  demand  that  it  be  delivered  to  hira  under  the  first  process 
issued  in  the  case,  leaving  the  title  or  right  of  possession  to  be 
investigated  afterwards.  In  no  other  form  of  action  has  the 
plaintiff  this  right.^®  The  bond  which  the  plaintiff  is  required  to 
give  is  regarded  as  a  sufficient  iiidcnniity  to  the  defendant  in 
case  the  result  of  the  trial  shall  sliow  the  title  of  the  latter  to  be 
superior  ;  and  for  the  purpose  of  asserting  his  title,  the  defendant 
is  permitted  to  set  it  up  l)y  his  pleading,  and  to  claim  its  return, 
and  to  require  the  plaintiff  to  prove  affirmatively  his  title  or 
right  to  possession  when  the  suit  was  begun." 

§  38.  Importance  of  the  action.  The  remedy  has  been 
called  a  violent  one."'  The  transfer  of  the  subject  of  the  dispute 
from  the  defendant  to  the  plaintiff,  upon  the  first  process,  leaving 
the  question  of  title  to  be  determined  afterward,  is,  without  doubt, 
a  proceeding  lial)le  to  abuse,  and  has  probably  been  made  use  of 
to  deprive  the  real  owner  of  his  property  ;  yet  it  has  frequently 
been  found  to  be  the  only  remedy  of  any  real  value  to  the  owner 

"Fowler  v.  Stonum,  6  Texas,  61;   Porter  v.  Miller,  7  Texas,  473. 

-♦Compare  CoUamer  v.  Page,  35  Vt.  387;  Bennett  v.  Allen,  30  Vt.  686; 
Glover  v.  Chase,  27  Vt.  533;  Sprague  v.  Clark,  41  Vt.  6. 

^Weaver  v.  Lawrence,  1  Dall.  156;  English  v.  Dalbrow,  1  Miles, 
(Pa.)    160. 

'"Hunt  V.  Chambers,  1  Zab.  (N.  J.)  624;  Yates  v.  Fassett,  5  Denio, 
31;  Kingsbury's  Exrs.  v.  Lane's  Exrs.,  21  Mo.  117;  Creamer  v.  Ford,  1 
Heisk.  (Tenn.)  308;  Lowry  v.  Hall.  2  W.  &  S.  (Pa.)  129. 

-^Mennie  v.  Blake,  6  E.  &  B.  (88  E.  C.  L.)  843. 

"Hutchinson  v.  McClellen,  2  Wis.  17.  See,  also,  Mennie  v.  Blake,  6 
E.  &  B.  (88  E.  C.  L.)  846;  Tifft  v.  Verden,  11  S.  &  M.  (Miss.)  160.  Im- 
prisonment is  sometimes  allowed.    Tomlin  v.  Fisher,  27  Mich.  525. 


GENERAL    PRINCIPLES.  39 

of  property  which  has  been  wrongfully  taken  or  detained  from 
him.  In  cases  where  the  defendant  is  irresponsible,  or  where  the 
identical  property  must  be  put  to  some  special  immediate  use,  or 
where  the  property  is  an  heirloom,  or  has  some  peculiar  value  to 
the  plaintiff,  the  necessity  of  this  action  has  long  been  ajiparent. 
Through  a  series  of  legislative  acts,  and  the  liberal  construction 
of  the  courts,  it  has  become  a  common  reuicdy  ;  indeed,  almost 
the  only  effective  one  in  cases  wherein  the  plaintiff  is  entitled  to 
specific  chattels,  and  prefers  a  recovery  in  specie,  or  where,  for 
any  cause,  he  prefers  the  property  to  the  risks  to  which  the  in- 
solvency or  knavery  of  the  defendant  might  expose  him,  should 
he  liave  judguient  for  damages  only."'  It  is  sometimes  tlie  only 
adequate  remedy  of  any  kind  available  when  property  is  withheld. 
When  one  owns  goods  which  are  in  the  possession  of  another,  he 
cannot  sue  in  assumpsit  for  them,  or  for  their  value,  but  nuist 
sue  for  them  in  replevin,  or  for  their  value  in  trover.  In  the 
latter  case,  if  the  defendant  is  insolvent,  the  judgment  is  of  no 
value,  and  the  jjlaintiflf  is  subject  not  only  to  the  loss  of  his  goods, 
but  to  tlie  burden  of  a  suit.^^' 

§  39.  The  right  to  present  possession  the  chief  question 
at  issue.  Tliough  conflicting  titles  may  well  be  settled  in  this 
form  of  proceeding,  it  is  chiefly  a  pos.sessory  action,  the  right  t») 
present  possession  of  the  property  being  the  principal  (question  in 
controversy."  And  where  the  title  is  investigated,  it  is  fre- 
quently with  a  view  to  determine  the  right  of  possession,  whieh 

=*  Badger  v.  Phinney.  15  Mass.  362;  Town  i'.  Evans,  1  Eng.  (Ark.) 
263;  Ames  v.  Miss.  Boom  Co.,  8  Minn.  467;  Kingsbury's  Exrs.  r.  Lane's 
Exrs.  21  Mo.  117;  Hunt  v.  Chambers,  21  N.  J.  624;  Clark  r.  Skinner,  20 
Johns.  467;  Travers  v.  Inslee,  19  Mich.  101;  Weaver  v.  Lawrence,  1 
Dall.  156.  Replevin  is  the  only  effective  remedy  when  the  goods  are 
in  the  hands  of  a  worthless  defendant.  Tibbal  i'.  Cahoon.  10  Walts, 
232;  Pettygrove  v.  Hoy(,  11  Me.  66;  Mennie  j'.  Blake.  6  Ell.  &  Bla.  (88 
E.  C.  L.)   849. 

"Creel  v.  Kirkham,  47  111.  345;  Johnston  r.  Salisbury.  61  111.  317; 
Bethlehem,  etc.,  v.  Perseverance  Fire  Co.,  81  Pa.  St.  446;  Gray  v. 
Griffith,  10  Watts,  (Pa.)  431;  Mendelsohn  v.  Smith,  27  Mich.  2.  S»h»  the 
old  case  of  Lindon  v.  HooiJtr,  Cowp.  415,  where  It  was  held  that  If  a 
party  jiays  money  for  the  release  of  his  cattle,  wrongfully  distrained, 
he  <-annot  recover  It. 

"  Heeron  v.  Beckwith.  1  Wis.  20;  Rose  v.  Cash,  58  Ind.  278;  Hunt  i\ 
Chambers,  1  Zab.  (21  N.  J.)  624;  McCoy  v.  Cadlc.  4  Clark,  (Iowa.)  557; 
Johnson  v.  Carnley,  6  Sold.  ( N.  Y.)  578;  (!orbitl  v.  HclHcy.  15  Iowa. 
296;    Seldner  v.  Snilfb,  40  Md.  603;    HIckey   r.  UlnKdalc,   12  Mich.   lOO; 


40  THE    LAW    OF    REPLEVIN. 

is  in  dispute  in  all  cases  of  replevin.  Ownership  of  chattels 
usually  draws  to  it  the  right  of  possession.  Proof  of  ownership 
would  warrant  the  inference  that  the  owner  was  entitled  to  pos- 
session ;  but  a  right  of  possession  may  be  shown  independent  of 
or  superior  to  the  owner's  rights.  Thus,  if  one  hire  a  horse  for 
a  stated  time,  and  the  owner  should  retake  i)ossession  while  the 
contract  of  hiiing  was  in  force,  the  hirer  might  sustain  n-plevin. 

§  40.  Statutory  provisions  allowing  the  defendant  to  re- 
tain possession.  In  many  of  the  states  statutory  provisions 
exisi,  wiiereby  the  defendant  is  allowed  a  reasonable  time  within 
which  to  give  bond  to  secure  the  plaintiff  and  retain  .the  property 
in  his  own  possession  until  the  questions  at  issue  are  determined. 
This  eminently  just  provision  is  ])ut  a  return  to  the  principles  of 
the  common  law  which  w(!re  in  force  in  the  earliest  times." 

§  41.  Formerly,  would  lie  only  for  a  distress.  Blackstone 
says  the  action  would  lie  only  for  the  recovery  of  a  wrongful  dis- 
tress.'^  This  statement  has  been  criticised  in  a  number  of  modern 
cases.-'*  While  there  is  nothing  in  the  form  of  the  writ  Avhich 
necessarily  confines  it  to  cases  of  distress,''*  there  are  many  ex- 
cellent reasons  for  accepting  the  statement  of  Justice  Blackstone 
in  prefei-ence  to  his  critics.  All  tl:e  early  Avriters  speak  of  re- 
plevin simply  as  the  remedy  for  a  wrongful  distress,^"  and  it  does 
not  seem  to  be  referred  to  in  any  other  connection  until  after 
Blackstone  wa'ote,  "  A  rcpleyari  lyeth,  as  Littleton  liere  teacheth 
us,  when  goods  are  distrained   and  impounded,"  etc."     Britton, 

Smith  V.  Williamson,  1  Har.  &  J.  (Md.)  147;  Childs  v.  Childs,  13  AVis. 
17;  Jackson  v.  Sparks,  36  Geo.  445. 

^Lisher  v.  Pierson,  11  Wend.  58;  Mitchell  v.  Hinman,  8  Wend.  607. 
If  the  defendant  claimed  the  property,  the  sheriff  could  proceed  no 
further.  The  writ  de  vroprietate  probando  was  then  sued  out  to  de- 
termine the  ownership.     See  ante,  §  12. 

^  3  Black.  Com.  146. 

'*Herdic  v.  Young.  55  Pa.  St.  177;  Daggett  v.  Robins,  2  Blackf.  (Ind.) 
416;  Chinn  v.  Russell,  2  Blackf.  (Ind.)  173,  note  3;  Shannon  v.  Shan- 
non, 1  Sch.  &  Lef.  327;  Pangburn  v.  Patridge,  7  .Johns.  140;  Bruen  v. 
Ogden,  6  Halst.  (N.  J.)  373;  Caldwell  v.  West,  1  Zab.  420;  Reist  v. 
Heilbrenner,  11  S.  &  R.  (Pa.)  132.  The  old  authorities  are,  that  re- 
plevin lies  only  for  goods  taken  tortiously.  Harwood  v.  Smethurst, 
29  N.  J.  L.  195;  Cullum  v.  Bevans,  6  Har.  &  .1.  (Md.)  409. 

"  See  ante.  §  11,  note. 

^Britton,  Vol.  1,  136,  et  seq.;  F.  N.  B.  156;  Gilbert  on  Replevin; 
Cowell  Interp.  Title  Replevin. 

^Co.  Litt.  145b. 


GENERAL    PRINCIPLES.  41 

one  of  the  earliest  authorities,  hiys  down  the  law  as  follows :  "  i^ut 
to  the  intent  that  beasts  and  other  distresses  may  not  be  long  de- 
tained, we  have  granted  that  the  sheriff,  by  the  simple  plaints 
and  by  pledges,  may  deliver  such  distresses.*"  In  twenty-six 
sections,  which  Britton  devotes  to  this  subject,  there  is  no  intima- 
tion that  the  writ  would  lie  for  any  other  purpose  than  the  re- 
covery of  a  distress.*^  Gill)ert  treats  of  the  action  simply  as  the 
remedy  fur  the  recovery  of  a  distress.  The  title  of  the  woik 
usually  cited  as  Gilbert  on  Reijlevin,  is,  "  The  Law  and  Practice 
of  Distress  and  Replevin."  The  second  chapter  of  this  work  be- 
gins as  follows  :  "  Having,  in  the  foregoing  chapter,  shown  in 
what  cases  a  distress  or  pledge  may  be  taken,  and  how  it  is  to  be 
disposed  of,  the  next  thing  in  order  to  be  treated  of  is  the  remedy 
given  the  party  to  controvert  the  legality  of  such  caption,  in  order 
to  bring  back  the  pledge  to  the  jiroprietor  in  case  the  distress 
were  unlawfully  taken,  and  without  just  cause.*" 

§  42.  The  same.  Of  something  like  a  hundred  cases  re- 
ported in  the  time  of  Edward  I.,  not  one  is  believed  to  exist  that 
was  for  any  other  cause  than  the  recover}'  of  a  distress.*'  The 
name  replevin,  from  7-ejth';/an',  to  "  take  back  the  pledge,"  renders 
it  almost  certain  that  the  action  was  originally  used  to  recover 
goods  wrongfully  seized  as  a  i)ledge  or  security  ;  such  seizures,  in 
the  ancient  law,  were  always  called  distresses.  Considering  these 
authorities,  together  with  the  fact  that  the  ancient  common  law 
gave  an  appeal  of  felony  in  cases  where  goods  were  seized  otlier- 
wise  than  as  a  distres.s,  as  well  as  for  goods  which  the  distrainor 
claimed  to  own  ;*■  also,  that  the  action  of  detinue  was  for  goods 
bailed  to,  and  wrongfully  detained  liy,  the  defendant,  and  that 
the  action  of  trover  enabled  the  plaiiitilV  to  recover  the  valur  of 
goods  wrongfully  ef>nverte<l,  replevin  seems,  by  the  harmony  of 
the  ancient  law,  conlined  solely  to  cases  of  distress." 

"Britten.  Nichols"  Tran.s.  Vol.  1.  i>.  13G. 

"This  aarees  with  Hractoii.  \t)',b.  and  Kleta,  94a. 

♦•See,  also.  Mennle  v.  Blake,  t;  Ell.  &  Hla.  (88  E.  C.  L.)  842.  Rf- 
plevln  is  a  personal  action,  to  try  the  IcKality  of  a  distiesH.  Eaton  t-. 
Southby.  Wllles,  134.  See.  also.  Ilsley  v.  Slulihs,  :,  Ma.ss.  280;  IJro.  Abr. 
&  Roll.  Abr.;  Cowell's  Interp.;   Jacobs'  Law  Die.  this  title. 

"  Year  Books.  Edward  I.,  jtassivi. 

**  See  ante,  ti  1.  notes. 

"The  Statute  11  (Jeo.  11.,  Ch.  lit.  provi<linK  for  botnl.  appllfs  only  in 
cases  of  replevin  of  (llstress  for  rent.  Knapj)  i'.  Colburn.  4  Wend  C.l^; 
Statute  II  Geo    II  .  Ch.  I'J 


42  THE    LAW    OF    REPLEVIN. 

§  43.  The  same.  Viewed  in  the  light  of  these  authorities,  it 
^volll(l  seem  that  replevin  by  the  common  law  was  an  action  to 
test  the  legality  of  a  distress;  that  it  would  lie  in  no  other  case; 
and  it  admits  of  no  doubt  that  under  the  statutes  and  decisions 
of  the  courts  in  modern  times,  the  settled  and  pi-evailing  doctrine 
is  that  the  action  lies  for  any  wrongful  taking  or  unlawful  deten- 
tion of  the  goods  of  another.** 

§  44.  Similarity  of  this  action  to  trespass,  trover  and 
detinue.  A  clearer  understanding  of  the  law  of  replevin  will 
be  gained  by  considering  it  as  belonging  to  the  same  class  of 
cases  as  trespass,  trover  and  detinue ;  that  while  the  form  of  pro- 
ceeding is  different,  and  the  results  are  not  the  same,  these  actions 
are  strictly  analogous  in  all  their  governing  principles.**  "Re- 
plevin at  common  law  is  distinguished  from  trespass,"  says  Cole- 
niDGE,  J.,  "in  this,  among  other  things,  that  Avhile  the  latter  is 
intended  to  procure  compensation  in  damages  for  goods  wrong- 
fully taken  out  of  the  actual  or  constructive  possession  of  the 
plaintiff,  the  object  of  the  former  action  is  to  procure  the  restitu- 
tion of  the  goods  themselves,  and  it  effects  this  by  a  preliminary 
ex  parte  interference  by  the  officers  of  the  law  with  the  possession. 
*  *  *  As  a  general  rule,  it  is  just  that  a  party  in  the  peaceable 
possession  of  goods  should  remain  undisturbed,  either  by  parties 
claiming  adversely,  or  by  the  officers  of  the  law,  until  the  right 
be  determined  and  the  possession  shown  to  be  unlawful ;  but 
Avhere,  either  by  distress  or  by  merely  a  strong  hand,  the  peace- 
able possession  has  been  disturbed,  an  exceptional  case  arises,  and 
it  is  thought  just  that  even  before  any  determination  of  the  right 
the  law  should  interfere  to  place  the  parties  in  the  condition  in 
which  they  were  before  the  act  was  done,  security  being  taken 
that  the  right  shall  be  tried  and  the  goods  forthcoming  to  abide 
the  decision."  ** 

**  In  addition  to  cases  before  cited,  see  Pangburn  v.  Partridge,  7 
Johns.  140;  Hopkins  v.  Hopkins,  10  Johns.  369;  Gardner  v.  Campbell, 
15  Johns.  401;  Cullum  v.  Bevans,  6  H.  &  J.  (Md.)  469;  Clark  v.  Skinner, 

20  Johns.  467;  Rogers  v.  Arnold,  12  Wend.  30;  Wheeler  v.  McFarland, 
10  Wend.  318;   Ilsley  v.  Stubbs,  5  Mass.  283;   Benje  v.  Creagh's  Admr. 

21  Ala.  151;  Trapnall  v.  Hattier,  1  Eng.  (Ark.)   21;  Dudley  v.  Ross,  27 
Wis.  680. 

^^Holbrook  i'.  Wight,  24  Wend.  169;  Marshall  v.  Davis,  1  Wend.  109; 
Wickliffe  v.  Sanders,  6  T.  B.  Mon.  (Ky.)  296;  Chapman  v.  Andrews,  3 
Wend.  242;  Heard  v.  James,  49  Miss.  236;  Rogers  v.  Arnold,  12  Wend. 
30;  Briggs  v.  Gleason,  29  Vt.  78;  Rector  v.  Chevalier,  1  Mo.  345. 

"Mennie  v.  Blake.  6  Ellis  &  B.  (88  E.  C.  L.)  842.     "  It  bears  a  strong 


GENERAL    PRINCIPLES.  43 

§  45.  Characteristics  of  this  action  compared  with  those 
of  trover  and  trespass.  Trover,  by  the  eonnnou  law,  !>upi)osed 
a  casual  loss  by  the  plaintitt',  and  a  tiiuling  and  conversion  by  the 

resemblance  to  trover."  Hisler  r.  Carr,  34  Cal.-641.  The  rule  in  tres- 
pass and  trover  which  allows  a  return  to  be  shown  in  mitigation  of 
damages  is  applicable  to  replevin;  exceptions  stated.  Gary  v.  Hewitt, 
26  Mich.  228.  "  The  same  principles  govern  in  trover  and  replevin." 
Parmalee  v.  Loomis,  24  Mich.  243.  "  When  the  taking  was  Illegal  the 
action  was  by  replevin;  when  detention  only  was  complained  of  the 
remedy  was  by  detinue."  Dame  r.  Dame,  43  N.  H.  37.  "  The  action  is 
like  trover  in  principle."  Sanford  Manf'g  Co.  v.  Wiggin,  14  N.  H.  44L 
"  Where  trespass  or  trover  lies  for  the  conversion,  replevin  will  lie 
for  the  goods."  Sawtelle  v.  Rollins,  23  Me.  196.  See,  also,  Shannon  r. 
Shannon,  1  Sch.  &  Lef.  324;  Clark  v.  Skinner,  20  .Johns.  467;  Rowell  v. 
Klein,  44  Ind.  294;  Vanderburgh  v.  Bassett,  4  Minn.  243.  "Same  proof 
required  as  in  trover."  Ingalls  v.  Bulkley,  13  111.  317.  "  Replevin  and 
trover  concurrent;  different  in  judgment  only."  Allen  v.  Grary,  10 
Wend.  349;  Beebe  i'.  De  Baun,  3  Eng.  (Ark.)  510.  "Analogous  to  tres- 
pass." Daggett  V.  Robins,  2  Blackf.  (Ind.)  416.  "The  measure  of  dam- 
ages is  found  by  processes  analago\is  to  those  in  actions  for  trespass." 
Phillips  V.  Harris,  3  J.  .J.  Marsh,  123,  Warner  v.  Matthews,  18  111.  83. 
"  For  any  unlawful  taking  of  chattels  out  of  the  possession,  actual  or 
constructive,  of  another,  the  injured  party  may  have  trespass  de  bonis, 
or  replevin,  at  his  election."  Ely  v.  Ehle,  3  Comst.  (N.  Y.)  507.  "Ordi- 
narily where  replevin  will  lie  trover  will  lie."  Pace  v.  Pierce,  49  Mo. 
393.  "  Replevin  in  the  cepit  lies  only  where  trespass  might  have  been 
brought."  Rich  v.  Baker,  3  Denio,  80.  "  The  same  general  principles 
regulate  trespass,  trover  and  replevin."  Whitfield  v.  Whitfield,  40  Miss. 
367.  "  .Judgment  in  trespass  is  a  bar  to  replevin  for  same  goods." 
Coffin  V.  Knott,  2  Greene,  (Iowa,)  582;  Karr  v.  Barstow,  24  HI.  580. 
"  Trespass  and  replevin  are  concurrent."  Gallagher  v.  Bishop,  15  Wis. 
276.  "  The  action  is  ranked  with  trespass  and  trover."  Crocker  v. 
Mann,  3  Mo.  473;  Walpole  v.  Smith,  4  Blackf.  (Ind.)  304.  Same  princi- 
ples apply  as  in  trover.  Gerber  v.  Monie,  56  Barb.  652.  The  action  of 
detinue,  or  of  replevin,  asserts  a  continuing  property  in  the  plaintiff, 
while  trover  proceeds  on  the  assumi)tion  that  by  a  wrongful  convorHlon 
the  defendant  has  become  the  owner,  an<l  seeks  damages  which  the 
conversion  lias  occasioned.  McGavock  r.  Chamberlain,  20  III.  220.  Re- 
plevin l.s  by  statute  made  a  substitute  for  detinue  and  trover.  Wrlglit 
V.  Bennett.  3  Barb.  451.  Consult,  in  this  connection.  Porter  v.  Miller. 
7  Texas.  473;  Seaver  v.  DIngley.  4  Gr.  (Me.)  306;  Grace  v.  Mitchell.  31 
Wis.  533;  Chllds  v.  Chllds.  13  Wis.  17;  Sharp  r.  WIttenhall.  3  Hill. 
(N.  Y.)  576;  Brockway  v.  Burnap,  12  Barb.  351;  Rich  v.  Baker,  3 
Denio,  79;  Maxham  v.  Day.  16  Gray,  (Mu.sk.  )  213;  Newman  v.  .Ichih'. 
47  Me.  51iO;  Mitchell  v.  RobertH.  .50  N.  H.  4;tO;  AnK<-ll  r.  K<'lfh.  24  Vt. 
373;  Overfleld  v.  Burlltt.  1  Mo.  749;  Gray  v.  NallonH,  1  Ark.  558; 
Jocelyn  V.  Barrett,  18  Ind.  128;   Burr  t;.  DauRherty.  21  Ark.  55!i;   ll.'ard 


44  THE    LAW    OF    REPLEVIN. 

defendant."  The  distinction  between  trover  and  replevin  con- 
sists mainly  in  the  fact  that  replevin  is  a  possessory  action,  while 
trover  is  based  on  a  right  of  property,  and  reqnires  ownership, 
either  general  or  special,  to  support  it.  The  right  of  possession 
figures  in  the  action  of  trover  only  as  it  forms  an  incident  to  the 
title.**  Trespass  lies  for  any  unauthorizx'd  interference  with  the 
goods  of  another.  In  trover  there  must  be  a  conversion.*'-'  In 
other  respects  the  actions  are  very  similar.  Detinue  was  for  the 
detention,  and  at  common  law  suppo.sed  a  bailment  of  goods  l)y 
the  plaintiff  to  the  defendant,  and  a  refusal  to  deliver  them  after 
proper  request.-^  In  trespass  the  defendant  was  liable  if  he 
took  the  goods  even  for  an  instant ;  and  an  offer  to  return,  accom- 
panied by  a  tender  of  the  good.s,  was.no  defense.  In  trover  the 
defendant  was  not  liable  unless  there  was  an  actual  conversion. 
If  the  defendant  surrender  the  goods  on  request,  he  is  not  liable 
in  trover. 

§  4G.  The  same.  Replevin  was  formerly  based  upon  a  sup- 
posed wrongful  taking  of  the  plaintiff's  goods.  Authorities  in 
recent  times  have  held  that  it  would  not  lie  at  common  laAv,  ex- 
cept in  cases  where  there  has  been  a  wrongful  taking.^'     The 

V.  James,  49  Miss.  246;  Chinn  v.  Russell,  2  Blackf.  ("Ind.)  174;  Bethea 
V.  ivI'Lennon,  1  Ired.  (N.  C.)  523;  Stockwell  v.  Phelps,  34  N.  Y.  Ct.  Ap- 
peals, 363;  Wheeler  v.  McFarland,  10  "Wend.  318.  Trespass,  replevin 
and  trover  are  concurrent  remedies  if  an  owner  has  the  immediate 
right  of  possession.  Stanley  v.  Gaylord,  1  Cush.  536.  Trespass  lies  for 
any  unlawful  interference  with,  or  dominion  over,  the  goods  of  another 
— Hardy  v.  Clendening,  25  Ark.  440;  Ralston  v.  Black,  15  Iowa,  47; 
Reynolds  v.  Shuler,  5  Cow.  325;  Kurd  v.  West,  7  Cow.  753;  Gibbs  v. 
Chase,  10  Mass.  125;  Phillips  v.  Hall,  8  Wend.  610;  Coffin  v.  Field,  7 
Cush.  355;  Phillips  v.  Harris,  3  J.  J.  Marsh,  (Ky.)  122— and  if  the  tres- 
passer take  possession  of  goods,  replevin  was  always  a  concurrent 
remedy.  Cummings  v.  Vorce,  3  Hill,  282;  Dunham  v.  Wyckoff,  3  Wend. 
280;  Erockway  v.  Burnap,  12  Barb,  347;  Marshall  v.  Davis,  1  Wend. 
110;  Allen  v.  Crary,  10  Wend.  349. 

*'3  Black.  Com.  151. 

"Burdick  v.  McVanner,  2  Denio,  171;  Heyland  v.  Badger,  35  Cal.  404; 
Ward  V.  Macauley,  4  Term  Rep.  260,  488.  Compare  Waterman  v.  Rob- 
inson, 5  Mass.  304.  So,  in  trespass,  the  plaintiff  must  aver  and  prove 
title.    Carlisle  v.  Weston,  1  Met.  (Mass.)  26. 

"   Price  V.  Helyer,  4  Bing.  597. 

^3  Black.  Com.  155;  Selw.  N.  P.  657;  Fitz  X.  B.  323;  Y.  B.  6  H.  7.  9; 
Lawson  v.  Lay,  24  Ala.  188;  Schulenberg  v.  Campbell,  14  Mo.  491. 

"  Pirani  v.  Barden,  Pike,  (5  Ark.)  84;  Wallace  v.  Brown,  17  Ark. 
452;   Neff  v.  Thompson,  8  Barb.  215;   Marshall  v.  Davis,  1  Wend.  113; 


GENERAL    PRINCIPLES.  45 

whole  theory  of  the  action  is  based  upon  the  assumption  that  the 
pbintiff  has  a  g^oneral  or  special  property  in  the  goods  in  dispute, 
as  well  as  a  right  to  their  immediate  possession,  anil  that  the  de- 
fendant wrongfully  took  or  wrongfully  detained  them  from  him  ;" 
and  upon  this  assumption  the  law  steps  in  and  restores  the  prop- 
erty to  the  original  possessor,  upon  his  giving  bond  to  make 
good  his  claim  to  the  property." 

§  47.  Distinction  between  this  action  and  trespass  and 
trover.  While  replevin  has  a  strong  resenihlanct'  to<l(iinue, 
trespass  and  trover,  as  has  been  siiown  in  the  preceding  section;*, 
yet  there  are  certain  points  of  distinction  wliich  it  is  important 
to  observe.  One  of  the  principal  differences  is,  that  in  leplevin 
the  property  in  dispute  may  be  delivered  to  the  plaintitt"  upon 
the  first  process  in  the  case,  while  in  the  common  law  action  of 
detinue,  the  property  is  not  delivered  until  after  judgment.**  In 
trespass  and  trover  the  property  was  never  delivered  to  plaintiff. 
In  each  of  these  actions  he  seeks  only  to  recover  the  value  of  his 
goods,  and  damages  for  the  injury  to  or  conversion  of  them, 
These  distinctions,  however,  only  apply  to  the  effect  of  the 
remedy;  not  to  the  principles  which  govern  in  determining  the 
question  of  right. 

§  48.  The  same.  Keplevin  may  frequently  be  susUiined  in 
cases  where  trespass  will  not  lie.  Thu.s,  it  is  essential,  to  sustain 
trespass,  that  there  should  be  some  proof  that  the  defendant  has 
in  some  way  interfered  with  the  plaintiff's  goods,  or  done  some 
act  in  some  way  wrongfully  interfering  with  the  plaintiff's  i)os- 
session."  Simple  omi.ssion  or  refu.sal  to  deliver  goods  rightfully 
in  tlie  defendant's  po.s.se.ssion  would  not  be  an  act  of  trespass,  but 
such  refu.sal  might  furnish  ample  grounds  to  sustain  an  actij)n 
of  replevin  for  the  detention,  or  trover  for  their  value.'""     Again, 

Woodward  v.  Railway  Co.,  4G  .\.  H.  52:^;  Smith  r.  Huntington,  3  N.  H. 
7C;  Wheelock  v.  Cozzens,  C  How.  (.Miss.)  liSO;  Miller  v.  Sleeper.  4  Cush. 
370;  Ramsdfll  v.  Buswell,  54  Me.  548;  Chinn  v.  Russell.  2  Hhickf.  176. 
note  3;  Vaiden  v.  Hell,  3  Ran<loli)h,  448;  Watson  t'.  Watson.  .9  Conn. 
140;  Drummond  v.  Hopi)er,  4  Harr.  (Del.)  327. 

"Hunt  V.  Chambers.  1  Zab.  (21  N.  J.)  624. 

"Mennle  v.  HIake.  C  Ell.  &  D.  (88  E.  C.  L.)  850. 

"Cox  V.  Morrow.  14  Ark.  608;  RadKer  v.  Phlnney.  15  Mass  362; 
Rohinson  x\  Ri<hard8.  45  Ala.  358;  3  Hlack.  Com.  152. 

'•Cirace  r.  .Mil«h<ll.  31   Wis.  5:;6. 

"See  Isaac  v.  Clark.  2  UulHt.  310.  Sometimes  cited  as  Thlmblelhorpu 
Case. 


46  THE    LAW    OF    REPLEVIN. 

trespass  will  not  lie  against  one  who  comes  rightfully  into  the 
possession  of  the  goods  of  another,  even  though  it  slioukl  turn 
out  tliat  the  party  who  delivered  tlieni  to  him  was  a  wrong-doer." 
So,  when  a  bailee  of  goods  sells  and  delivers  them  without 
authority,  such  sale  and  delivery  conveys  no  title  to  the  pur- 
chaser ;  and  though  replevin  would  lie  at  the  suit  of  the  rightful 
owner,  trespass  would  not  lie.  If,  however  no  delivery  of  the 
goods  accompany  such  sale,  and  the  purchaser  takes  possession 
by  his  own  wrong,  trespass  or  replevin  for  the  wrongful  taking 
would  lie,  at  the  election  of  the  injured  party.** 

§  49.  The  same.  If  an  infant  sell  his  goods  and  deliver 
them  with  his  own  hand,  though  the  act  be  voidable  and  replevin 
lies,  yet  he  could  not  recover  in  trespass.  If,  however,  the  vendee 
should  take  them  by  force,  trespass  would  lie,  notwithstanding 
the  sale.^^  In  a  case  where  the  action  was  in  the  cepit  for  barrels 
of  flour  sold  by  a  carrier  without  authority,  and  the  defendant 
pleaded  non  cepit,  with  notice  that  he  should  claim  :  1st,  that  the 
property  was  his ;  2d,  that  it  was  the  property  of  the  carriers, 
and  3d,  that  the  carrier  had  the  right  of  possession.  On  the  trial 
the  defendant  proved  that  he  purchased  the  flour  in  good  faith, 
for  a  fair  price,  from  II.,  the  captain  of  a  canal  boat,  but  it  was 
held  that  under  the  plea  of  non  cepit  the  title  Avas  not  put  in 
issue  ;  that  proof  of  purchase  from  IT.  was  immaterial  unless  de- 
fendant showed  that  II.  was  authorized  to  sell ;  that  there  was 
no  proof  of  delivery,  but  only  of  sale  by  the  carrier,  the  flour 
being  found  in  the  defendant's  possession,  the  action  for  taking 
was  properly  bnjught,  and  the  plaintiff  recovered.'^"  Again,  in 
replevin  the  plaintiff  is  bound  to  take  the  goods  he  sues  for  when 
delivered  to  him  by  the  officer,  even  though  they  be  in  a  damaged 
condition."  But  in  trespass  the  plaintiff  is  not  bound  to  take 
the  goods,  but  may  insist  on  judgment  for  value." 

§  50.     The  same.     Another  important  distinction  is,  that  in 

"Barrett  v.  Warren,  3  Hill,  (N.  Y.)  348;  Wilson  v.  Barker,  4  Barn. 
&  Adol.  (24  E.  C.  L.)  614. 

"'Marshall  v.  Davis,  1  Wend.  109;  Nash  v.  Mosher,  19  Wend.  431; 
Barrett  v.  Warren,  3  Hill,  348. 

=^' Fonda  v.  Van  Horn,  15  Wend.  613;  Roof  v.  Stafford,  7  Cow.  (N.  Y.) 
179,  and  note,  citing  many  cases  on  the  law  of  infancy. 

""Ely  V.  Ehle,  3  Comst.  (N.  Y.)  506. 

"Allen  V.  Fox,  51  N.  Y.  564. 

"Robinson  v.  Mansfield,  13  Pick.  144. 


GENERAL    PRINCIPLES.  47 

order  to  sustain  replevin,  the  defendant  must  have  the  actual 
or  constructive  possession  of  the  goods  at  the  time  suit  is  com- 
menced ;  in  other  words,  he  must  be  in  a  condition  to  deliver  the 
property  when  called  on  by  the  officer,  in  obedience  to  the 
command  of  the  writ."  Thus,  when  a  creditor  in  an  ex- 
ecution directs  the  sheriff  to  levy  on  certain  property,  and  the 
sheritf  does  so  and  takes  possession  of  it,  the  sheritt"  and  the  cred- 
itor in  execution  may  both  be  liable  in  trespass ;  but  tlie  shei'iff 
having  possession  of  the  property  would  alone  be  liable  in  re- 
plevin." 

§  51.  Where  one  takes  forcible  possession  of  his  own 
property,  he  may  be  liable  in  trespass,  but  not  in  replevin. 
"Where  a  person  takes  forcible  possession  of  his  own  goods,  he 
may  be  liable,  in  certain  ca.ses,  as  a  trespasser,  but  not  in  replevin  ; 
having  the  right  of  possession  at  the  time  of  the  sei/Aire,  his  tres- 
pass does  not  deliar  him  from  the  right  of  possession,  nor  vest 
the  other  party  with  the  right  to  retake  tlie  goods.^^ 

"  Lathrop  v.  Cook,  2  Shep.  (14  Me.)  415;  Richardson  r.  Reed,  4  Grey, 
443;  Hickey  v.  Hinsdale,  12  Mich.  100;  Ramsdell  v.  Buswell,  54  Me. 
546.  To  this  rule  some  exceptions  have  been  stated,  as  where  the  de- 
fendant had  possession  of  the  goods  at  one  time,  but  had  purposely  put 
them  out  of  his  hands  to  defeat  the  plaintiff.  Ellis  v.  Lersner,  48  Barb. 
539;  Brockway  v.  Burnap,  16  Barb.  309.  See  post.  §  145.  While  in 
trespass  the  defendant  may  never  have  had  possession.  Trover  may  be 
sustained  where  the  defendant  once  possessed  the  goods,  but  has  dis- 
posed of,  or  has  destroyed  or  made  way  with  them  before  suit  brought. 
Richardson  v.  Reed,  4  Gray,  442;  Taylor  v.  Trask,  7  Cow.  249;  Wool- 
bridge  V.  Conner,  49  Me.  353;  McNeeley  v.  Hunton.  30  Mo.  332;  Wlck- 
iiffe  V.  Sanders,  C  T.  B.  Mon.  (Ky.)  296;  Kreger  v.  Osboru,  7  Blackf. 
(Ind.)   74. 

'♦Grace  v.  Mitchell,  31  Wis.  533;  Coply  r.  Rose.  2  Comst.  115;  Mitchell 
V.  Roberts,  50.  N.  H.  48G.  Contra,  see  Allen  v.  Crary.  10  Wend.  349. 
The  point  was  made  in  a  case  in  New  York  that  the  plaintiff  In  exe- 
cution who  had  done  nothing  except  to  direct  the  sheriff  to  levy,  had 
never  had  possession  of  tho  goods,  and  therefore  could  not  be  a  de- 
fendant in  replevin,  but  the  court  followed  Allen  r.  Crary.  10  Wend. 
349,  and  held  that  this  wa.s  a  sufflclent  proof  of  taking  to  enable  the 
owner  to  bring  replevin.     Knapi)  v.  Smith.  27  N.  Y.  280. 

"Taylor  v.  Welbey.  30  Wis.  42;  Carroll  v.  Fathklller,  3  Portf-r  (  Ala  ) 
279;  Neely  v.  Lyon.  (18  Tenn.)  10  Yerg.  473;  Hogard  v.  JonoB,  9 
Humph.  (Tenn.)  739;  Hodgeden  v.  Hubbard.  18  Vt.  504;  (Jw«n  v.  Boylo, 
22  Me.  67;  Hurd  t^  WeKt.  7  Cow.  753;  Spencer  v.  MiGowen.  13  Wend. 
256;  Coverlee  r.  Warner.  19  Ohio.  29;  Marhh  v.  White.  3  Barb.  518; 
Collomb  V.  Taylor.  9  Humph.  (Tenn.)  C89. 


48  THE    LAW    Or    REPLEVIN. 

§  52.  Actual  detention  of  the  goods  necessary  to  sus- 
tain replevin.  AVliile  proof  of  a  wrongful  or  forcible  taking 
from  tlu>  jilaintilf's  ]>os.session,  may  l»c  .suniciciit  lo  sustain  tres- 
pass, it  ^\•()ul(l  not  always  be  sullicicnt  to  sustain  I'cjtlevin,  with- 
out jiroof  of  an  actual  detention  of  the  goods  by  the  defendant 
at  the  time  the  suit  was  brought.  For  instance,  if  the  defendant 
should  show  that  before  the  suit  was  l)rought  he  returned  the 
gootis  to  the  plaintiff,  proof  of  the  fact  that  he  had  taken  them 
by  force  would  not  justify  a  finding  against  him  in  replevin.''" 
So,  a  levy  by  an  officer  not  authorized  by  law  is  a  trespass,  and 
an  action  may  be  sustained  without  proof  of  a  removal  of  the 
goods."  But  replevin  would  not  lie  unless  the  officer  should  re- 
move the  property,  or  should  have  the  possession  of  the  goods  at 
the  time  the  suit  was  brought. •"''* 

§  58.  Replevin  in  cepit,  detinet  and  detinuet.  The  action 
is  frequently  spoken  of  as  replevin  in  the  rj'}>it  and  in  the  detinet. 
There  was  formerly  a  distinction  between  these,  amounting  to 
more  than  a  form  of  pleading.  The  old  style  of  declaration,  in 
case  the  goods  were  not  delivered  on  the  writ,  was  *  *  * 
"Wherefore,  he  took,  and  until  now  unjustly  detains,"  etc.  When 
the  goods  were  delivered  on  the  writ  the  form  was,  "  Wherefore, 
he  took  and  unjustly- detained,"  etc.""  Keplevin  the  cepit  is  sim- 
I)ly  for  the  wrongful  taking,  from  capio  in  Latin,  "  to  take  ;"  and 
replevin  in  the  detinet  is  for  the  detention  of  goods  onh',  detinet 
being  from  de  and  teneo.,  "  to  hold."  This  distinction,  though  not 
of  as  much  importance  as  formeHy,  should  still  be  kept  in  mind.'" 
There  is  another  technical  distinction  between  the  action  in  the 
detinet  and  in  the  detinuet,  the  former  signifying  "  he  detains," 
and  the  latter  "  he  detained."  The  latter  form  in  the  declaration 
imports  that  the  goods  have  been  delivered  to  the  plaintiff  upon 
his  writ ;  he,  therefore,  can  only  recover  damages  for  the  taking 
and  detention  up  to  the  time  of  delivery,  and  not  the  value  of 
the  good.s,  which  by  legal  intendment  are  in  his  possession.  When 

'"Paul  V.  Luttrell,  1  Colorado,  318.    See  post,  §  134,  and  folio A'ing. 

''•Allen  V.  Crary,  10  Wend.  349;  Wheeler  v.  McFarland,  10  Wend.  322; 
Neff  V.  Thompson,  8  Barb.  215. 

<^  English  V.  Dalbrow,  1  Miles,  (Pa.)   160. 

"Harwood  v.  Smethurst,  5  Dutch.  (29  N.  J.)  203. 

"Pierce  v.  Van  Dyke,  6  Hill,  613;  Oleson  v.  Merrill,  20  Wis.  462; 
Cummings  v.  Vorce,  3  Hill,  282. 


GENERAL    PRINCIPLES.  49 

he  charges  that  the  defendant  detains,  that  is  in  the  detinet,  and 
he  may  have  the  vahie  as  damages.'" 

§  54.  Wrongful  taking.  Proof  of  any  unlawful  taking  ov 
control  of  the  goods  of  another  is  sufficient  to  sustain  an  alle- 
gation of  taking,  without  proof  of  an  actual  forcible  dispossession 
of  the  plaintiff."-  Wrongful  taking,  as  used  in  this  connection, 
does  not  imply  any  forcible  or  malicious  act ;  it  simply  means 
that  the  taking  is  against  right."'  Cases  frequently  arise,  how- 
ever, where  the  defendant  has  become  possessed  of  the  plaintiff's 
goods  in  a  lawful  manner,  and  refuses  to  deliver  them  on  request. 
In  such  cases  the  action  is  for  the  detention,  and  is  called  replevin 
in  the  detinet.  With  this  form  of  action  trover  is  always  concur- 
rent ;  or  the  plaintiff  may,  at  his  election,  employ  it  where  the 
goods  were  taken  by  force.'*  As  every  unlawful  taking  is  ^>r//»<« 
facie  an  unlawful  detention,  proof  of  a  wrongful  taking  is  per- 
mitted so  far  as  to  excuse  the  plaintiff  from  the  necessity  of 
proof  of  a  demand,  even  where  the  form  of  action  is  for  detjiining. 
The  right  to  prove  a  wrongful  taking  in  cases  where  the  charge 
is  for  detention  only  will  not,  however,  be  permitted  to  aft'ect  the 
question  of  damages."' 

§55.  The  scope  of  the  investigation  in  this  action.  The 
parties  to  this  action  arc  not  confined  to  an  investigation  of  tlie 
naked  question  of  title  or  right  of  possession,  but  may  go  into  all 
the  incidents  that  go  to  make  up  these,  as  being  necessary  to 
arrive  at  a  correct  decision.  Thus,  where  replevin  was  brought 
to  recover  property  seized  under  a  chattel  mortgage,  the  plaintiff 

•' Petre  v.  Duke.  Lutw.  360;  Potter  v.  North,  1  Saund.  347^.  note  2; 
Truitt  V.  Revill,  4  Harr.  (Del.)  71;  Fox  v.  Prlckett,  5  Vroom,  (.\.  J.) 
13.     See  Boswell  v.  Green,  2.'j  X.  .1.  L.  390. 

^  Haythorn  v.  Rushforth,  19  N.  .J.  L.  ICO;  Cox  v.  Morrow.  M  Ark. 
608;  Stewart  v.  Well.s,  6  Hurl).  80;  Neff  v.  Thompson.  S  Harl).  215; 
Wheeler  v.  McP^arland,  10  Wend.  322;  Barrett  v.  Warren.  3  Hill  {N.  Y.) 
349;   Murphy  v.  Tyndall,  Hempst.  C.  C.  10. 

"Moore  v.  Moore.  4  Mo.  421. 

'♦Ronge  V.  Dawson.  9  Wis.  246;  Cummings  v.  Vorre.  3  Hill.  (N.  Y.) 
282. 

"Eldred  v.  The  Oconto  Co.,  33  Wis.  133;  Newell  r.  Nc-wrll.  34  MIkh. 
400;  Smith  v.  M<  Lean.  24  Iowa.  322.  Replevin  in  tin-  (Ittintt  wan 
seldom  used  until  it  whh  made  ai)pli(-al)l)>  by  statute  to  a  largo  ma- 
jority of  caseH — YattH  v.  FaHHelt.  r>  Dcnlo.  26;  Potter  »•.  .North.  1  Haund. 
347ft — sind  it  Ih  now  tin*  most  comnioii  form  of  tin-  action.  DaKKctl  v. 
Robins.  2  Rlatkf.  416 
4 


50  THE    LAW    OF    REPLEVIN. 

claimed  that  the  note  described  in  tlie  moilfijaeje  nnder  whi(;h  the 
iseizuie  was  made  was  given  for  macliinery  that  was  warranted; 
that  there  was  a  breach  of  the  warranty,  and  consequently  a 
failuie  of  consideration  to  the  amount  of  that  note  ;  and  the  mat- 
ter was  held  i)roper.'''  Where  the  action  was  for  a  distress  for 
rent  the  defendant  was  permitted  to  show  that  lie  purchased  the 
})remises  with  the  consent  of  his  landlord  ; "'  and  whei-e  the  ac- 
tion was  for  wheat  stored  with  the  delendant,  and  he  justihed  on 
the  ground  that  he  was  a  warehouseman,  the  plaintilf  re|)li('(l 
that  some  forty  bushels  were  lost  or  destroyed,  and  that  tliis 
equaled  in  value  the  storage." 

§  5G.  The  same,  "Where  the  liolder  of  a  prior  mortgage 
replevied  from  the  sheriff,  the  latter  was  permitted  to  set  up  as  a 
defense  under  the  statute  that  the  mortgage  was  to  secure  a  loan 
on  usurious  interest.''  In  another  case,  where  the  defendant 
claimed  that  the  property  belonged  to  his  minor  son,  and  that  he, 
as  natural  guardian,  was  bound  to  keep  the  custody  of  it,  the 
plaintiff  offered  proof  that  he  bought  of  the  defendant  and  his 
son  ;  thereupon  the  defendant  introduced  evidence  to  show  that 
the  sale  w^as  fraudulent.'" 

§  57.  The  same.  When  the  action  is  for  the  recovery  of 
goods  wrongfully  attached  by  an  officer  on  i)rocess  against  an- 
otlier,  the  plaintiff  must  recover  on  the  strength  of  his  own  title, 
which  is  subject  to  encounter  whatever  would  tend  to  show  that 
the  property  was  liable  to  the  levy.^* 

Note  H.  "Nature  of  the  action,  in  general. — The  primary  object  of 
the  action  under  the  code,  is  to  recover  the  goods  in  specie;  the  gist  of 
the  action  is  wrongful  detention,  Dow  v.  Dempsey,  21  "Wash.  86,  .57 
Pac.  355.  The  owner  may  sue  either  in  replevin  or  trover  for  the 
value,  Id.  Dawson  v.  Baum,  3  Wash.  T.  464,  19  Pac.  46,  Scott  v.  Mc- 
Graw,  3  Wash.  675,  29  Pac.  260.  The  judgment  in  one  form  of  action 
bars  recovery  in  the  other,  Dow  v.  Dempr.ey,  stipra.  It  is  a  statutory 
remedy  to  enable  the  owner  to   recover   personal   property   wongfully 


'«Hutt  V.  Bruchman,  55  111.  441;   Bruce  v.  Westervelt,  2  E.  D.  Smith. 
440. 

"Hill  V.  Miller,  5  S.  &  R.  (Pa.)  355. 

™Babb  V.  Talcott.  47  Mo.  343;  Gillham  v.  Kerone,  45  Mo.  490. 

"Dix  V.  Van  Wyck,  2  Hill,  (N.  Y.)  522. 

«»  Bliss  V.  Badger,  36  Vt.  338. 

"Hotchkiss  V.  Ashley,  44  Vt.  198. 


GENERAL    PRINCIPLES.  51 

detained  with  an  alternative  remedy,  if  possession  cannot  be  had, 
Riciotto  V.  Clement,  94  Calif.  105,  29  Pac.  414.  The  action  lies  for 
either  wrongful  taking  or  wrongful  detention.  Wise  r.  Jefferis,  2  C.  C. 
A.  432,  51  Fed.  641.  It  is  merely  a  possessory  action,  and  where  the 
record  fails  to  show  what  claim  was  asserted  by  the  defendant,  a  judg- 
ment of  retorno  is  not  conclusive  upon  the  title.  Pearl  r.  Garlock,  61 
Mich.  419,  28  N.  W.  155.  Unless  the  title  is  distinctly  put  in  issue  the 
judgment  determines  only  the  right  of  possession,  Consolidated  Co.  v. 
Bronson,  2  Ind.  Ap.  1,  28  N.  E.  155.  The  action  originates  in  wrong 
and  can  be  maintained  only  by  proof  of  the  wrong;  the  right  of  posses- 
sion is  always  in  issue,  the  title  may  or  may  not  be,  Dodd  v.  Williams, 
etc.  Co.,  27  Wash.  89,  67  Pac.  352.  It  is  never  founded  upon  contract 
but  always  upon  tort,  Wheeler  Co.  v.  Jacobs,  2  Misc.  236,  21  N.  Y.  Sup. 
1006.  The  action  has  lost  its  common  law  character  and  depends  for 
its  efficacy  almost  entirely  upon  statute,  Corbett  v.  Pond,  10  Ap.  D.  C. 
17.  The  single  question  is  whether  at  the  date  of  the  writ,  the  plain- 
tiff was  entitled  to  possession,  Dreyfus  v.  Cage,  62  Miss.  733.  The 
action  cannot  be  used  to  settle  partnership  accounts,  nor  can  an  in- 
solvent by  replevin  investigate  the  conduct  of  his  assignee  in  in- 
solvency, Rodman  i'.  Nathan,  45  Mich.  607,  8  N.  W.  562;  nor  ascertain 
the  balance  after  administration  of  the  trust.  Id.  Replevin  under  the 
code  lies  wherever  trespass  de  bonis  could  have  been  maintained  at 
common  law,  Rowell  v.  Klein,  44  Ind.  290.  Both  parties  are  actors, 
Corbett  v.  Pond,  10  Ap.  D.  C.  17.  If  the  plaintiff  discontinue  the  de- 
fendant should  nevertheless  be  permitted  to  prove  his  right  and  have 
Judgment  for  the  return  of  the  goods  and  his  damages,  Strauss  v. 
Smith,  8  N.  M.  391,  45  Pac.  930.  The  statute  is  not  controlled  ])y 
differing  provisions  relating  to  actions  for  money  demands,  Kelly  v. 
Kennemore,  47  S.  C.  256,  25  S.  E.  134.  The  cause  may  be  instituted 
and  proceed  without  delivery  of  the  goods;  the  jurisdiction  of  the 
court  does  not  depend  upon  the  regularity  or  the  sufficiency  of  the 
affidavit  or  bond,  Hudelson  v.  First  National  Bank,  56  Neb.  247,  76 
N.  W.  570.  And  though  an  order  for  arrest  made  at  the  institution  of 
the  action,  is  vacated,  the  action  may  still  proceed,  Eddings  v.  Boner, 
1  Ind.  T.  173,  38  S.  W.  1110.  Where  the  goods  are  not  seized  on  the 
writ,  the  action  is  governed  by  the  same  principles  as  the  action  of 
trover,  McArthur  v.  Oliver,  60  Mich.  605,  27  N.  W.  689.  The  office  of 
the  writ  is  to  deal  with  the  title.  Welborn  v.  Shirly.  65  Ga.  695.  The 
proceeding  known  under  the  code  as  claim  and  delivery  la  sul>staiitlal!y 
the  common  law  action  of  rei)levln;  It  lies  where  there  Is  I'ltlu-r  wronn- 
ful  taking  or  a  wrongful  detention.  Moser  v.  Jenkins,  6  Ore.  447.  It  is 
simply  a  possessory  action,  the  title  to  the  goods  Is  not  necessarily  In- 
volved. Wllhelm  V.  Scott.  14  Ind.  Ap.  275,  40  N.  E.  537. 

MalvinHH  Krjtlrvin. — An  action  IIch  for  the  nialicloiiH  prosecution  of 
an  action  of  rcpbnln  without  any  probable  cauHc  ami  with  Intent  to  ex- 
tort money  from  the  defenduut  therein.  Harris  r.  Thomus,  Mich.  103 
N.  W.  863. 


52  THE    LAW    OF    REPLEVIN. 

In  the  Different  states. — The  writ  is  demandable  as  of  right  on 
tomplaint  of  the  party  injured,  Watson    r.  Watson,  9  Conn.   14L 

In  Alabama,  the  statutory  action  combines  the  qualities  of  both 
detinue  and  replevin;  but  one  form  of  action  is  prescribed,  whether  the 
taking  or  the  detention  merely,  be  unlawful.  To  this  procedure  is 
adapted  the  machinery  of  the  replevin  and  the  seizure  of  the  goods 
and  the  custody  under  bond  to  abide  the  judgment,  Rich  v.  Lowenthal, 
99  Ala.  488.  13  So.  220.  No  writ  issues  but  an  endorsement  is  made 
upon  the  summons  requiring  the  sheriff  to  take  the  goods,  M. 

In  Arkansas,  the  action  may  proceed,  though  no  writ  of  replevin 
is  issued.  Eaton  v.  Langley,  65  Ark.  448,  47  S.  W.  123. 

In  California,  the  distinction  between  the  action  of  claim  and 
delivery  under  the  code,  and  an  action  for  the  wrongful  conversion 
of  goods,  is  said  to  be  as  broad  as  that  between  detinue  and  trover 
at  common  law.  One  lies  for  the  recovery  of  goods  with  damages 
for  the  detention,  and  the  other  for  damages  for  the  wrongful  con- 
version of  goods,  Kelly  v.  McKibben,  54   Calif.  192. 

In  Connecticut,  the  action  formerly  lay  only  for  a  wrongful  de- 
tention; replevin  in  the  cepit  was  not  allowed.  Watson  v.  Watson,  9 
Conn.  141  (1832.)  The  history  of  the  action  is  set  forth  in  Bellknap 
Bank  v.  Robinson.  66  Conn.  542,  34  Atl.  495.  The  action  is  governed 
solely  by  the  statute.  The  owner  may  recover  his  goods  with  damages 
for  the  detention;  and  if  a  portion  be  not  found,  damages  for  the 
conversion  of  these,  Id.  The  action  lies,  although  the  conversion 
occurred  in  another  state  and  the  goods  not  found  never  were  in  the 
state.  Id. 

In  Georgia,  the  possessory  warrant  claims  and  restores  possession 
to  one  from  whom  the  possession  was  fraudulently  obtained;  this  writ 
does  not  lie  where  the  title  is  obtained  by  fraud  and  the  possession 
accompanies  it  by  the  owner's  consent,  Amos  v.  Dougherty,  65  Ga.  612. 
The  plaintiff  must  have  had  possession;  but  the  prior  possession  of 
an  agent  is  an  actual  and  not  a  constructive  possession,  and  satisfies 
the  statute,  Hillyer  v.  Brogden,  67  Ga.  24.  The  plaintiff  must  give  bond 
in  double  the  value,  with  surety,  to  have  the  goods  forthcoming  to 
answer  any  suit  brought  by  defendant  in  relation  to  any  claim  or 
lien  upon  them,  within  four  years  thereafter,  Id.  The  question  in  the 
trial  of  possessory  warrant  is  in  whom  was  the  last  lawfully  acquired 
quiet  and  peaceable  possession,  Ivey  v.  Hammock,  68  Ga.  428.  There 
is  no  question  as  to  the  title  or  the  right  of  possession,  King  v.  Ford, 
70  Ga.  628.  Section  3390  of  the  Code  of  Georgia  was  intended  to  com- 
bine, so  far  as  possible,  the  common  law  actions  of  detinue  and  trover. 
The  plaintiff  may  elect  upon  the  trial,  either  to  take  the  specific  article, 
as  in  detinue,  or  its  value  and  hire,  as  in  trover.  The  plaintiff  may 
elect  in  advance  to  have  restitution  of  the  specific  article,  and  this 
is  done  when  he  sues  out  a  bail  process  in  aid  of  his  action  by  which 
the  sheriff  is  commanded  to  exact  of  the  defendant  a  bond  with  surety 
in  double  the  value,  as  sworn  by  plaintiff,  conditioned  to  answer  the 
judgment,  etc.,  and  pay  the  eventual  condemnation  money,  or,  on  hia 


GENERAL    PRINCIPLES.  53 

default  to  pay  for  the  property  and  deliver  it  to  the  plaintiff  on  his 
giving  like  bond;  or,  if  the  property  is  not  found,  to  arrest  and  com- 
mit the  defendant  until  the  goods  be  produced,  or  he  shall  enter  into 
bond  with  surety  for  the  eventual  condemnation  money,  McElhannon 
V.  Farmers  Alliance  Co.,  95  Ga.  670.  22  S.  E.  686. 

In  Iowa,  the  action  may  proceed,  although  the  plaintiff  fails  to 
give  bond;  and  prevailing,  the  plaintiff  may  take  judgment  for  the 
goods  or  the  value,  at  his  election.  In  either  case  he  recovers  damages 
for  the  detention,  Cook  v.  Hamilton,  67  la.  394,  25  N.  W.  676. 

In  Indiana,  the  statutory  action  covers  the  entire  ground  of  detinue 
and  replevin  at  the  common  law,  Wilson  v.  Rybolt,  17  Ind.  391. 

In  Kansas,  if  the  goods  are  not  replevied  the  action  may  still  be 
prosecuted  as  one  for  damages,  Lamont  v.  Williams,  43  Kans.  558,  23 
Pac.  592,  Goodwin  v.   Sutheimer,  8   Kans.  Ap.  212,  55   Pac.  486. 

In  Maryland,  the  action  lies  for  any  unlawful  detention.  It  extends 
to  all  cases  in  which  the  plaintiff  seeks  to  try  the  title  to  personal 
property,  and  recover  its  possession,  McKinzie  v.  Baltimore  Co.  28 
Md.  161;  La  Motte  v.  Wismer,  51  Md.  543. 

In  Michigan,  the  action  is  founded  upon  an  unlawful  detention 
whether  there  has  been  an  unlawful  taking  or  not.  Sexton  r.  McDowd, 
38  Mich.  148. 

In  Minnesota,  it  is  optional  with  the  plaintiff  to  claim  immediate 
delivery,  or  he  may  defer  his  claim  and  demand  possession  at  any  time 
before  answer;  or,  he  may  waive  it  and  obtain  it  only  after  judgment. 
The  election  to  waive  the  delivery  does  not  convert  the  action  into 
trover,  Benjamin  v.  Smith,  43  Minn.  146,  44  N.  W.  1083. 

In  Nebraska,  where  the  plaintiff  fails  to  give  bond,  the  goods  remain 
with  the  defendant  and  the  action  proceeds  as  for  damages  only  and 
it  is  said,  becomes  in  effect  an  action  for  trover,  Philleo  v.  McDonald, 
27  Neb.  142,  42  N.  W.  904.  The  distinction  between  replevin  In  the 
cepit  and  in  the  detinet  does  not  exist,  Hale  v.  Wigton,  20  Neb.  S3.  29 
N.  W.  177. 

In  Pennsylvania,  the  action  so  far  as  regards  goods  distrained  for 
rent,  is  only  the  common  law  form  of  the  action  modified  by  statute 
and  usage,  Cassidy  v.  Elias,  90  Pa.  St.  434.  The  goods  are  a  mere 
pledge  and  the  question  tried  is  not  the  right  of  property  but  of  posses- 
sion merely,  and  during  the  trial  the  possession  is  in  the  plaintifT, 
Id.  The  action  lies  for  the  goods  of  one  person  In  the  possession  of 
another,  whether  the  claimant  ever  had  possession  or  not  and  wlu'ther 
his  property  in  the  goods  bo  absolute  or  quallflnd,  provided  )ic  ban 
the  right  of  possession.  Miller  v.  Warden,  111   I'a.  St.  300. 

In  Rhodn  Island,  the  action  depends  upon  the  actual  Kclzuri'  of  th«* 
goods  by  the  ofTlcer;  If  he  returns  not  founfl  there  Is  notlilng  to  try. 
there  being  no  provision  of  the  statute  allowing  judgment  for  the 
value.  Warren  i'.  Inciter.  24  R.  I.  36.  52  Atl.  76. 

In  South  Dakota,  the  writ  of  replevin  Is  merely  ancltlury,  and  the 
plaintiff  may  resort  to  It  or  not.   In  his  plea.sure;    he  lu  nut  required 


54  THE    LAW    OF    REPLEVIN. 

to  claim  immediate  delivery,  Simpson  Co.  v.  Marshal,  5  S.  Dak.  528. 
59  N.  W.  728. 

Statutory  Prohibition  or  Interference  with  the  Action. — A  statute 
providing  that  the  sheriff,  defendant  in  an  action  of  replevin,  shall 
be  entitled  to  substitute  as  defendant  therein,  the  plaintiff  in  the 
process  under  which  he  seized  the  goods,  and  himself  be  discharged, 
is  unconstitutional;  the  aggrieved  party  is  entitled  to  look  to  the 
one  who  did  the  wrong  and  cannot  be  required  to  look  to  another, 
Sunberg  v.  Babcock,  61  la.  601,  16  N.  W.  716.  A  statute  prohibiting  an 
action  against  a  warehouseman,  by  an  owner  for  his  goods  in  the 
warehouseman's  hands,  is  an  unconstitutional  interference  with  the 
right  of  property,  IMilligan  v.  Brooklyn  Co.,  34  Misc.  55,  68  N.  Y. 
Sup.   744. 

The  statute  of  Indiana  provides  that  whenever  any  person  other 
than  defendant  in  an  attachment,  shall  claim  the  attached  property, 
the  right  of  property  may  be  tried  as  in  case  of  property  taken  on  ex- 
ecution and  that  "  the  claimant  having  notice  of  the  attachment  shall 
be  bound  to  prosecute  his  claim  as  in  such  cases,  or  be  barred  of  his 
right."  Held,  that  this  statute  must  be  construed  to  refer  to  a  notice 
required  by  other  sections  to  be  given  in  writing  by  the  officer  mak- 
ing the  levy,  stating  by  what  process  the  goods  are  taken  and  requir- 
ing all  persons  to  assert  their  right  within  twenty  days,  requiring 
persons  so  notified  to  institute  proceedings  to  try  the  right  of  property, 
and  that  the  claimant  having  notice  otherwise  of  the  attachment,  is 
not  under  any  duty  to  institute  such  proceedings,  but  may  bring 
his  action  of  replevin,  Patterson  v.  Snow,  24  Ind.  Ap.  572,  57  N.  E. 
286. 

A  statute  providing  for  the  enforcement  of  an  agricultural  lien, 
declared  that  all  persons  having  knowledge  of  the  proceeding  shall 
"  intervene  in  such  proceeding,"  and  that  if  they  fail  to  do  so  they 
shall  be  barred  by  such  proceeding,  takes  away  the  right  of  replevin. 
Dogan  V.  Bloodworth,  56  Miss.  419,  and  see  McCarthy  v.  Ockerman, 
154  N.  Y.  565.  49  N.  E.  153. 

In  Iowa  a  statute  provided  that  the  claimant  of  any  property  for 
the  seizure  or  sale  of  which  an  indemnifying  bond  has  been  taken  and 
returned,  shall  be  barred  of  his  action  against  the  officer  if  the  surety 
in  the  bond  was  responsible  when  the  bond  was  accepted.  It  was 
held  unconstitutional  as  compelling  the  owner  of  property  to  surrender 
it  without  his  consent  for  the  private  benefit  of  another.  Foule  v. 
Mann,  53  la.  42,  S.  C,  suh  nom.  Towle  v.  Mann,  3  N.  W.  814;  Craig  v. 
Fowler,  59  la.   200,  13  N.  W.  116. 

Of  the  Title  Generally.  Plaintiff  must  recover  on  the  strength  of 
his  own  title.  Easter  v.  Fleming,  76  Ind.  116;  Gallick  v.  Bordeaux, 
Mont.  78  Pac.  583;  Hall  v.  So.  Pacific  Co.,  Ariz.  57  Pac.  617;  Bardwell  v. 
Stubbert,  17  Neb.  485,  23  N.  W.  344.  Failure  of  the  defendant's  justifi- 
cation does  not  warrant  a  verdict  for  the  plaintiff,  not  shown  to  be 
entitled  to  the  goods.  Gallick  v.  Bordeaux,  supra.  Plaintiff  not  shov- 
ing  actual    possession    must   prove    a   legal   title,    Russell    v.   Wa'k  ••, 


GENERAL    PRINCIPLES.  55 

73  Ala.  315.  Under  a  plea  of  property  in  a  stranger  with  a  traverse 
of  the  property  of  the  plaintiff  the  only  issuable  fact  is  the  right  of 
property  in  plaintiff;  it  is  sufficient  if  he  has  a  special  interest  entitling 
him  to  possession,  Blakely  Co.  v.  Pease,  95  Ills.  Ap.  341.  No  writing 
is  required  to  pass  the  title  to  chattels.  Beimuller  v.  Schneider,  62  Md. 
548. 

That  plaintiff's  title  is  liable  to  forfeiture  does  not  impair  his  right 
of  action;  until  judgment  for  forfeiture,  the  goods  are  his.  Tracy  v. 
Corse,  58  N.  Y.  144.  But  a  mere  lien  is  not  sufficient.  Perry  Co.  Bank  v. 
Rankin.  73  Ark.  589,  84  S.  W.  725.  Plaintiff  became  surety  for  T. 
in  a  forthcoming  bond;  the  goods  attached  were  delivered  to  T.  The 
effect  of  this  was  to  discharge  the  attachment.  T.  agreed  with  plain- 
tiff that,  in  consideration  of  plaintiff's  becoming  his  surety,  he  would, 
in  case  judgment  should  be  rendered  against  him,  surrender  the 
goods  to  discharge  the  judgment;  and  in  case  of  his  default  the 
plaintiff  might  seize  them  so  as  to  return  them.  Held  that  this  agree- 
ment conferred  upon  plaintiff  no  title  which  he  could  assert  as  against 
T'.s  vendee,  nor  did  it  constitute  plaintiff  receiptor  of  the  goods.  Schultz 
V.  Greenwood.  R.  I.  GO  Atl.  1065.  In  Alabama  by  statute  the  landowner 
has  the  legal  title  to  the  crop,  and  even  though  by  agreement,  the  crop 
is  to  be  equally  divided  between  the  landowner  and  the  cropper,  one 
claiming  under  the  latter  has  no  right  at  law  against  one  claiming 
under  the  landowner.    Farrow  v.  Wooley,  138  Ala.  267,  36  So.  384. 

Plaintiff  only  required  to  show  Title  as  against  Defendant. — Plain- 
tiff is  not  required  to  show  title  as  against  all  the  world;  it  is  enough 
if  he  is  entitled  as  against  the  defendant.  Lewis  v.  Birdsey,  19  Ore. 
164.  26  Pac.  623.  One  entitled  to  the  goods  may  in  general  maintain 
replevin  against  any  one  in  possession  who  has  no  right  to  detain 
them  as  against  him.  Read  v.  Brayton,  143  N.  Y.  342,  38  N.  E.  261. 
One  with  whom  negotiable  bonds  have  been  deposited  as  collateral 
security  for  a  loan  by  plaintiff,  cannot  refuse  to  surrender  them  on 
suggestion  that  the  depositor  hr.d  previously  pledged  them  to  another. 
Gibson  v.  Lenhart,  111  Pa.  St.  624,  5  Atl.  52. 

Prior  Possession  Unnecessary.  It  is  not  required,  to  maintain  re- 
jilevin,  that  plaintiff  should  ever  have  had  possession  of  the  goods. 
Miller  v.  Warden.  Ill  Pa.  St.  300.  2  Atl.  90;  Garcia  r.  Gunn.  119  Calif. 
315,  51  Pac.  684;  Ferguson  v.  Lautersteln.  160  Pa.  St.  427.  28  Atl.  852; 
Lazard  v.  Wheeler.  22  Calif.  139.  Plaintiff  was  lessee  under  the  Mexi- 
can Republic  of  an  Island  where  many  wild  goats  were  running;  de- 
fenrlants  were  In  possession  of  four  thousand  skins  taken  from  goats 
killed  upon  this  island;  the  lease  provided  (hat  pialntilT  might  iillll/.o 
the  wild  goats,  and  conferred  tin-  right  of  killing,  under  control  of 
the  lessor;  It  was  held  that  [daiiitlfr  was  prima  fade  eiitlth'tl  to  recover 
the  skins.     Garcia  r.  Gunn.  supra. 

Prior  PoHHCSHion  Sufflrirnt  Title.  A  mir<'  naU'-d  poHsoHKlon  wltlunit 
any  general  or  special  property  Is  not  Kufldrlent  to  maintain  replevin. 
Poe  V.  Stockton,  39  Mo.  Ap.  550.  But  It  Keems  that  the  more  poHHes 
plon   Ih  ,ln    Itself  a  property   which   the  poHscFHor  nuiHt   l>e  entitled   to 


56  THE    LAW    OF    REPLEVIN. 

defend,  e.  g.,  a  mere  bailee  whose  possession  is  wrongfully  interfered 
with.  Cox  V.  Fay,  54  Vt.  446.  Under  a  statute  allowing  replevin  where- 
ever  goods  are  wrongfully  taken  or  detained,  notliing  but  the  present 
right  of  possession  is  necessary.  Waterman  v.  Matteson,  4  R.  L  539. 
One  in  possession  may  recover  goods  from  those  who,  without  a 
better  right,  disturb  his  possession.  Odd  Fellows  Association  v.  Mc- 
Allister, 153  Mass.  292,  26  N.  E.  862;  Meyer  v.  First  National  Bank, 
63  Neb.  679,  88  N.  W.  867;  Lamotte  v.  Wisner,  51  Md.  543;  Gafford  v. 
Stearns,  51  Ala.  434;  Steere  v.  Vanderberg,  90  Mich.  187,  51  N.  W. 
205;  Wambold  v.  Vick,  50  Wis.  456,  7  N.  W.  438;  Krewson  v.  Purdom, 
13  Ore.  568,  11  Pac.  281;  Fallen  v.  Bogy,  78  Mo.  Ap.  88;  Van  Baalen  v. 
Dean,  27  Mich.  104;  Kno.x  v.  Heliums,  38  Ark.  413;  Downey  v.  Arnold, 
97  His.  Ap.  91.  Even  though  the  plaintiff  in  fact  has  no  title,  Moorman 
V.  Quick,  20  Ind.  67;  Dederick  v.  Brandt,  16  Ind.  Ap.  264,  44  N.  E.  1010; 
Barkley  v.  Lieter,  49  Neb.  123,  68  N.  W.  381. 

And  even  though  the  possession  was  obtained  by  wrong,  it  is  suf- 
ficient as  against  one  who  has  no  title  nor  right  of  possession.  Ander- 
son V.  Gouldburg,  51' Minn.  294,  53  N.  W.  636.  It  is  only  necessary  that 
the  possession  should  have  been  lawful  as  against  the  one  interfering 
with  it,  /(/.  Actual,  peaceable  possession  obtained  in  good  faith,  evei 
from  one  without  right,  e.  g.,  a  thief,  suffices  as  against  one  who  shows 
no  right,  Bartleson  v.  Mason,  53  His.  Ap.  644.  In  detinue  for  a  mule 
defendant  showed  title  by  purchase  from  one  of  the  distributees  of  the 
estate  of  a  deceased  former  owner;  under  this  claim  of  right,  and 
never  having  had  any  possession,  he  forcibly  took  the  animal  from  the 
plaintiiT  who  had  taken  it  up  as  an  estray,  and  been  in  peaceable  pos- 
session for  several  months;  it  was  held  plaintiff  was  entitled  to  recover, 
Huddleston  v.  Huey,  73  Ala.  215.  Actual  possession,  accompanied  by  an 
equitable  interest,  is  sufficient,  Appleby  v.  Hollands,  8  Ap.  Div.  375,  40 
N.  Y.  Sup.  808;  so,  possession  under  claim  of  title,  as  against  an 
officer  who  levies  execution  against  a  third  person,  Id.;  or  possession 
with  any  special  property,  Gafford  v.  Stearns,  supra.  Actual  possession 
is  evidence  of  title,  Springfield  Co.  v.  Shackelford,  56  Mo.  Ap.  642; 
Barkley  v.  Leiter,  supi-a.  Possession  raises  a  presumption  of  title, 
Stevens  v.  Gordon,  87  Me.  564,  33  Atl.  27;  but  only  as  against  one 
showing  no  better  title.  Stone  v.  McNealy,  59  Mo.  Ap.  396.  Possession, 
the  contrary  not  appearing,  is  presumed  to  be  rightful,  Stockwell  v. 
Robinson,  9  Houst.  314,  32  Atl.  528.  One  showing  no  right  cannot  ob- 
ject to  defects  in  title  of  the  plaintiff,  Conely  v.  Dudley,  111  Mich.  122, 
69  N.  W.  151.  The  fact  that  some  other  person  has  an  interest  in  the 
goods  is  not  material  if  the  plaintiff  has  the  right  of  possession, 
Lillie  V.  Shaw,  22  Wash.  234,  60  Pac.  406.  The  title  and  right  of  pos- 
session may  be  separated;  and  the  mere  right  of  possession  may  pre- 
vail against  the  title,  Pacey  v.  Powell,  97  Ind.  371.  The  possession  of 
land  is  sufficient  evidence  of  title  to  warrant  the  one  in  possession 
in  recovering  the  fruits  and  products  thereof,  Russell  v.  Willette,  80 
Hun,  497,  30  N.  Y.  Sup.  490.  The  habitual  enjoyment  and  cultivation 
of   land    is   sufficient   evidence  of   title   to   sustain   an   action   for   the 


GENERAL    PRINCIPLES.  57 

product  of  the  land,  even  although  included  within  the  limits  of  a 
public  highway,  Stevens  r.  Gordon,  supra.  One  whose  sole  right  is  de- 
rived under  a  void  execution  levy,  not  followed  by  actual  possession  of 
the  goods,  has  neither  possession  nor  right  of  possession,  Upham  r. 
Caldwell,  100  Mich.  2C4,  5S  N.  W.  1001.  Plaintiff  purchased  a  sleigh 
under  condition  that  the  vendor  should  retain  possession  for  six 
months,  but  plaintiff  to  have  the  use  of  it  whenever  he  desired  during 
that  time.  Plaintiff  was  held  entitled  to  maintain  replevin  as  against 
an  oflBcer  who  seized  it  under  process  against  a  stranger,  Tandler  v. 
Saunders,  5G  Mich.  142,  22  N.  W.  271. 

What  Facts  Constitute  Possessioii. — Animals  are  presumptively  in 
possession  of  the  owner  of  the  homestead  where  those  reside  who  keep 
and  use  them,  Burt  v.  Burt,  41  Mich.  S2,  1  N.  W.  936.  One  in  possession 
of  a  house  is  presumed  to  be  in  possession  of  the  goods  in  the  house, 
Stockwell  r.  Robinson,  supra.  Delivery  of  the  key  of  an  office  and  the 
combination  of  the  safe  therein,  confers  possession  of  the  office  furni- 
ture. Gamble  v.  Wilson,  33  Neb.  270,  50  N.  W.  3.  Residence  of  the  son 
with  the  father  does  not  confer  upon  the  father  possession  of  properties 
belonging  to  the  son,  and  which  he  controls;  the  father  cannot  replevy, 
if  the  goods  are  unlawfully  taken,  Woolston  v.  Smead,  42  Mich.  54,  3 
N.  W.  251.  An  infant  daughter  may  replevy  a  piano  which  is  her  proj)- 
erty  and  in  her  possession  though  in  the  father's  house,  with  whom 
she  is  residing,  Wambold  r.  Vick,  50  Wis.  456,  7  N.  W.  438.  If  the 
infant  alone  uses  the  instrument,  the  fact  that  it  is  kept  in  the  parent's 
house  where  she  resides,  that  it  was  a  gift  from  the  parent,  that  .she 
pays  no  taxes  upon  it,  nor  the  expenses  of  removal  when  the  house- 
hold removes,  does  not  impeach  her  possession.  Kellogg  v.  Adams,  51 
Wis.  138,  8  N.  E.  115.  The  husband  made  a  gift  to  his  wife  of  a  driving 
horse,  calling  the  stableman  who  had  charge  of  it  and  informed  him  of 
the  gift;  after  that  the  wife  alone  drove  the  animal;  the  husband,  who 
had  previously  driven  it  ceased  to  do  so.  It  was  retognizcd  as  the 
wife's  property  and  no  one  used  it  without  her  consent.  Held,  that 
though  the  animal  for  nearly  four  years  was  kept  in  the  husband's 
stable,  and  fed,  shod  and  trained  at  his  expense,  there  was  suffidont 
delivery,  and  that  the  wife  might  recover  the  anim:\l  in  replevin, 
Armitage  v.  .Mace,  96  N.  Y.  538.  Plucking  and  delivering  a  h.indful  of 
grass  partially  grown,  is  not  a  good  symbolical  delivery  of  a  whole 
field,  accompanying  a  sale  of  the  whole  with  an  agreement  of  the 
vendor  to  cut  it  at  his  own  expense.  The  vendor  being  a  ni«'re  tenant, 
and  the  landlord  having  put  him  out  before  the  grass  matured,  and 
cut  and  cured  the  grass  at  his  own  expense,  was  held  to  have  ji  better 
right.  Lamson  v.  Patch,  5  Allen,  586.  A  quantity  of  timber  In  rafts 
moored  at  the  premises  of  a  corporation  was  sold  by  the  agent  of  lh«' 
corporation,  to  defendant,  who  put  one  Ames  In  poKHcsslon  of  It.  for 
defendant.  The  same  ag«'iil  was  em|)loyed  liy  the  seller  and  pur- 
chaser to  measure  the  raft.  It  was  held  there  was  Kiidi  u  delivery  as 
the  case  arlriiltted  of.  and  the  sale  consummated,  though  no  measure- 
mint  w:is  yet  cfTcded,  Adams  Co.  r.  Senter,  2(1  .Mich.  73      Tlu"  sheriff 


58  THE    LAW    OF    REPLEVIN. 

after  levying  upon  the  goods  and  taking  a  delivery  bond  still  remains, 
in  law.  in  possession.  Pugh  v.  Calloway.  10  0.  St.  488.  The  entry  upon 
lands  and  commencing  to  harvest  the  hay  growing  thereon,  and 
partially  harvesting  and  delivering  the  hay  growing  on  the  north  half 
■of  the  field,  pursuant  to  contract  with  the  landowner,  by  which  the 
party  is  to  have  the  hay  growing  on  the  south  half  for  his  services, 
does  not  confer  possession  either  of  the  lands  or  the  hay;  and  if,  the 
party  so  employed  having  temporarily  quitted  the  work  by  consent  of 
the  landowner,  the  landowner  emi)loys  others  to  cut  and  cure  the 
grass  growing  on  the  south  half  of  the  field,  the  one  first  employed  can- 
not maintain  replevin,  Bryant  v.  Dyer,  96  Mo.  Ap.  455,  70  S.  W.  51G. 

Lumber  at  the  yard  of  the  manufacturer's  mill,  bought,  paid  for, 
separated,  measured  and  marked  with  the  buyer's  name,  is  the  prop- 
erty of  the  buyer,  even  as  against  creditors  of  the  manufacturer, 
Russe  V.  Hendricks,  75  Mo.  Ap.  386. 

Brick  unburned  in  the  kiln.  The  seller  putting  his  hand  upon  the 
southerly  end  of  a  certain  ten  arches,  which  were  the  subject  of  the 
transaction,  declared,  "  These  are  your  brick."  It  was  understood  that 
the  vendor  was  to  complete  them,  and  that  they  were  to  be  left  upon 
the  yard  until  the  following  spring.  This  was  held  sufficient  de- 
livery, and  the  purchaser  was  permitted  to  recover  them  as  against 
the  subsequent  mortgagee  of  the  vendor.  Whittle  v.  Phelps,  181  Mass. 
317,  63  N.  E.  907. 

By  the  terms  of  the  lease  tenant  was  required  to  harvest  and  thresh 
the  crop  and  deliver  to  the  landlord  a  per  centage  thereof.  When  the 
wbeat  was  all  harvested  the  landlord  requested  that  it  might  be  stacked 
in  his  barnyard,  and  this  was  done.  Held,  that  the  possession  still 
remained  in  the  tenant,  and  that  if  the  landlord  afterward  attempted 
to  assert  an  exclusive  right  and  refused  to  permit  the  tenant  to  thresh 
it,  the  latter  might  maintain  replevin,  Cunningham  v.  Baker,  84  Itid. 
597. 

Plaintiff  must  be  entitled  to  Immediate  Possession. — Plaintiff  must 
have  the  right  of  possession  at  the  institution  of  his  suit,  Easter  v. 
Fleming,  78  Ind.  116;  Carpenter  v.  Glass,  67  Ark.  135,  53  S.  W.  678. 
But  in  Guy  v.  Doak,  47  Kans.  366.  27  Pac.  968,  it  was  held  that  one  who 
had  instituted  replevin  without  any  right,  but  had  acquired  title  pend- 
ing the  suit  might  proceed.  Where  plaintiff  is  entitled  to  possession 
on  payment  only  of  the  purchase  price  or  charges  or  disbursements 
made  by  the  defendant,  he  cannot  recover  without  showing  payment  or 
tender  of  these  sums,  Robison  v.  Hardy,  22  Ills.  Ap.  512;  and  he  must 
show  a  legal  title;  a  mere  equity  will  not  suffice,  Haas  v.  Altieri,  2 
Misc.  252,  21  N.  Y.  Sup.  950.  Plaintiff  must  show  either  actual  posses- 
sion or  a  right  to  immediate  possession,  Massachusetts  Co.  v.  Hayes, 
16  Ills.  Ap.  233. 

A  tenant  who  by  his  lease  is  entitled  to  the  increase  of  livestock,  but 
is  required  to  maintain  and  care  for  it  until  the  end  of  the  lease,  does 
not  by  a  sale  entitle  the  purchaser  to  possession,  Spooner  v.  Ross,  24 
Mo.  Ap.  599. 


GENERAL    PRINCIPLES.  59 

Goods  were  sent  to  a  store  for  comparison  with  other  goods,  the 
merchant  to  purchase  if  they  corresponded.  He  was  to  have  possession 
until  demanded.  Held,  that  a  levy  having  been  made  before  demand 
the  owner  could  not  replevy,  Klee  r.  Grant,  2  Misc.  412,  21  N.  Y.  Sup. 
1010. 

In  Wise  v.  Grant.  140  N.  Y.  593,  35  N.  E.  1078.  it  was  held  that 
where  the  statute  gives  the  action  of  replevin  only  to  one  who  at  the 
time  of  the  levy  under  an  attachment,  has  the  "  right  to  reduce  the 
goods  into  his  possession,"  one  who  had  been  induced  to  dispose  of  his 
goods,  by  fraudulent  representations  of  the  purchaser,  but  had  done 
nothing  to  disaffirm  the  sale  until  after  the  attachment  levy,  could  not 
maintain  replevin;  this,  upon  the  ground  that  until  the  sale  is  re- 
scinded the  buyer  has  both  the  title  and  possession,  and  therefore  a 
leviable  interest,  and  that  the  seller  has  the  right  of  possession  only 
after  rescission,  which  had  not  taken  place  at  the  date  of  the  levy  of 
the  attachment.  The  reasoning  of  the  court  seems  to  be  exceedingly 
refined  and  of  questionable  soundness.  Elsewhere  it  is  held  that  the 
institution  of  the  suit  in  replevin  is,  of  itself,  a  rescission  of  the  sale, 
SoperCo.  V.  Halsted  Co.,73  Conn.  547.  48  Atl.  425,  Bradley  Co.  r.  Fuller. 

58  Vt.  315,  2  Atl.  1G2;  and  in  Desbecker  v.  McFarline,  42  Ap.  Div.  4.")5, 

59  N.  Y.  Sup.  439,  S.  C,  166  N.  Y.  625,  60  N.  E.  1110,  the  plaintiffs 
were  permitted  to  recover  from  the  sheriff,  goods  of  which  they  had 
been  defrauded  and  upon  which  the  sheriff  had  levied  under  execution 
against  the  fraudulent  purchaser,  though  there  was  no  rescission  until 
after  the  levy. 

Promissory  notes  of  one  S.  deposited  in  a  bank  payable  to  the  plain- 
tiff but  to  be  delivered  only  on  the  order  of  S..  cannot  be  replevied  by 
payee  until  S.  directs  their  delivery,  Nicholls  Co.  v.  First  National 
Bank,  6  N.  D.  404,  71  N.  W.  135. 

Prior  Possession  Originating  in  Wrong. — Plaintiff  who  must  bring 
forward  his  own  unlawful  act  to  sustain  his  claim,  fails,  Bayless  v. 
Lefaivre,  37  Mo.  119.  But  an  actual  possession,  though  wrongful,  is 
sufficient  as  against  one  who,  having  no  better  right,  forcibly  assumes 
possf'ssion,  Reynolds  r.  Horton,  2  Wash.  185,  26  Pac.  221;  e.  g.,  where 
goods  are  obtained  by  tenant  by  waste  of  the  demised  lands.  Id;  where 
one  quarries  stone  unlawfully  upon  the  lands  of  another,  and  a  tres- 
passer assumes  iwssession  of  the  stone.  Id;  where  one  cuts  and  cures 
the  grass  upon  unenclosed  land  of  another,  and  a  third  person  having 
no  right  in  the  lands  seeks  to  recover  it.  Johannsen  v.  Miller.  45  Neb. 
53,  63  N.  W.  141.  And  where  corn  is  raised  upon  Indian  lands  under 
a  lease  which  is  void,  because  i)rc)lilblted  l)y  statute,  the  party  culti- 
vating anrl  maturing  the  crop  Is  entitled  thereto;  and  the  llb-gallly  of 
the  lease  and  possfsslon  thereunder  Is  no  dffcnsf  to  an  action  of  re 
plevin  against  an  offlr-er  who  levies  upon  It  as  the  property  of  the 
lesKor,  Fluckhalter  r.  Nuziim.  9  Kans.  Ap.  SS.'..  61  Pac.  310.  The  levy 
of  an  attachment  upon  goodH  of  which  the  defendant  therein  Iiuh  ob- 
tained pOBHCHHlon  wrongfully,  Is  no  defense  to  nn  action  "f  i'"i'Un  i^v 


60  THE    LAW    OF    REPLEVIN. 

the  owner  who  has  been  so  dispossessed.  Post  v.  Berwind  Co.,  176  Pa. 
St.  297.  35  Atl.  111. 

Certainty  of  Interest  Required. — One  who  is  entitled  to  an  indeter- 
minate and  uncertain  amount  of  a  larger  quantity,  example,  lumber 
enough  to  manufacture  two  hay  presses,  cannot  maintain  replevin, 
Stanley  v.  Robinson,  14  Ills.  Ap.  480. 

PiDTliaser  at  Private  Sale. — Goods  sold  by  a  completed  sale,  may  be 
replevied  by  the  purchaser  though  there  has  been  no  delivery,  Wilkins 
r.  Wilson.  1  Marv.  404.  41  Atl.  7(5;  Cheney  v.  Eastern  Line,  59  Md.  557; 
though  the  goods  are  taken  in  satisfaction  of  a  debt,  De  St.  Aubin  v. 
Field,  27  Colo.  414,  62  Pac.  199. 

In  Hodges  v.  Nail,  66  Ark.  135,  49  S.  W.  352,  where  the  property  in 
controversy  were  cattle  upon  the  range,  it  was  said  that  a  sale  of 
the  personalty  is  not  complete  so  as  to  entitle  the  vendee  to  maintain 
replevin  as  against  the  vendor,  without  a  delivery.  But  it  seems 
certain  that  title  of  goods  may  pass  without  manual  delivery;  e.  g., 
where  they  are  in  the  hands  of  vendor's  bailee  and  the  vendor  author- 
izes the  vendee  to  call  for  them,  Bemis  v.  DeLand,  177  Mass.  182,  58 
N.  E.  684.  Certain  hogs  were  selected  out  of  a  larger  number  and 
the  price  agreed  upon,  and  plaintiff  paid  earnest  money;  it  was  agreed 
that  the  hogs  should  remain  at  defendant's  corral  until  the  following 
Saturday.  Held,  the  title  passed,  that  being  the  intention  of  the 
parties;  and  the  omission  of  the  buyer  to  call  for  the  hogs  on  the  day 
appointed  did  not  authorize  the  seller  to  recede.  O'Farrell  v.  McClure, 
5  Kans.  Ap.  880,  47  Pac.  160. 

Goods  shipped  by  the  seller  to  be  paid  for  upon  delivery,  and  which 
are  never  paid  for,  nor  accepted  by  the  buyer,  may  be  replevied  by  the 
seller  from  the  carrier,  or  from  an  assignee  for  creditors.  The  title 
never  passed  out  of  the  seller,  and  the  assignee  took  nothing,  Lentz  v. 
Flint  &  Pierre  Co.,  53  Mich.  444,  19  N.  W.  138.  Goods  shipped  to  a 
merchant  and  which  he  refuses  to  accept,  remain  the  property  of  the 
consignor,  even  as  against  creditors  of  the  consignee,  and  even  though 
the  goods  remain  in  the  possession  of  the  assignee  and  are  exposed  for 
sale  by  him  with  his  other  stock,  Gilbert  v.  Forrest  City  Co.,  72  Ills. 
Ap.  186.  A  merchant  ordered  goods  from  the  plaintiff;  they  failed  to 
arrive  promptly,  and  the  merchant,  going  to  another  state,  left  direc- 
tions with  the  one  in  charge  of  his  store  that  if  the  goods  should 
arrive  they  were  not  to  be  accepted.  The  goods  arrived  while  the 
merchant  was  still  absent,  and  a  clerk,  ignorant  of  the  instructions  of 
the  principal,  paid  the  freight  and  placed  them  in  stock.  The  merchant 
not  knowing  of  this,  immediately  afterwards  sold  his  stock  without 
inventory,  to  the  defendant.  Held,  that  never  having  been  accepted 
by  the  buyer  the  title  remained  in  plaintiff,  and  plaintiff  might  re-clalm 
them  in  replevin.  Graves  v.  Morse,  45  Neb.  604.  63  N.  W.  841.  Title  to 
personal  property  does  not  pass  by  a  sale  until  the  sale  is  completed, 
and  this  is  a  question  of  intention.  One  making  an  unconditional  offer 
of  a  stock  of  merchandise  and  the  fixtures  of  the  business,  but  express- 


GENERAL    PRINCIPLES.  61 

ing  readiness  to  deliver  only  at  a  later  day.  retains  the  title;  his  sale 
to  a  third  person  in  the  meantime  is  effectual  to  pass  title.  Kerr  r. 
Henderson,  62  N.  J.  L.  724,  42  Atl.  1073.  But  the  goods  must  be.  In 
some  manner  ascertained  and  identified.  The  purchase  of  a  specified 
quality  of  corn  to  be  delivered  on  a  certain  day  at  a  specified  place  and 
for  a  certain  price  per  bushel,  earnest  money  being  paid,  passes  no  title, 
no  corn  being  selected,  identified  or  set  apart.  The  transaction  is  a  mere 
agreement  to  sell  and  will  not  support  replevin.  Augustine  v.  Mc- 
Dowell, 120  la.  401,  94  N.  W.  918.  Plaintiff,  a  merchant  in  Arkansas, 
bargained  with  merchants  in  Missouri  for  a  quantity  of  flour;  it  was 
shipped  with  other  flour  of  the  same  brand  and  description  to  de- 
fendant; no  particular  boxes  or  barrels  were  marked  for  plaintiff; 
defendant  was  directed  not  to  deliver  without  payment  in  cash.  Held, 
that  although  by  the  terms  of  plaintiff's  bargain,  plaintiff  was  entitled 
to  thirty  days'  time,  the  title  never  vested,  and  plaintiff  could  not  main- 
tain replevin.  Carpenter  v.  Glass,  67  Ark.  135,  53  S.  W.  678.  Brandy 
wrote  to  Joseph  Brothers,  accepting  an  offer  made  by  one  of  the  firm 
for  a  certain  quantity  of  wrought  iron,  mixed  steel,  horseshoes,  and 
car-rails.  The  prices  were  set  down  opposite  the  articles;  the  contract 
expressly  provided  for  delivery  on  the  cars  and  for  payment  in  cash, 
as  delivered.  As  to  the  car-load  of  rails,  neither  the  number  nor 
amount  was  stated;  they  had  never  been  seen  by  the  plaintiff  or  his 
agents.  The  court,  on  the  ground  that  the  contract  was  an  entirety 
and  that,  in  part,  the  goods  had  not  been  sufficiently  identified,  held 
that  title  did  not  pass,  .Joseph  v.  Braudy,  112  Mich.  579,  70  N.  W.  1101. 

Where  the  plaintiff  had  bargained  for  a  quantity  of  lumber  sufl^cient 
to  make  two  hay  presses,  but  the  amount  was  not  ascertained  or  agreed 
upon,  and  there  was  no  delivery,  it  was  held  the  title  did  not  pass, 
Stanley  r.  Robinson,  14  Ills.  Ap.  480.  The  intention  of  the  parties  may 
sometimes  prevail,  even  against  the  express  terms  of  the  agreement. 
In  June,  1854,  Frink  &  Company  sold  all  their  stage  coaches,  horses, 
and  other  like  property  in  Illinois,  to  Walker,  one  of  the  firm;  with- 
out the  knowledge  of  the  firm  an  agent  had  before  th.it  transferred  cer- 
tain coaches  and  horses,  for  a  temporary  purpose,  from  the  Illinois 
line  to  the  line  in  Iowa,  and  at  the  date  of  this  transaction  they  were 
actually  being  used  there.  It  was  held  that  although  the  bill  of  sale 
was  in  terms  limited  "  to  the  stage  stock  now  used  or  owned  by  Frink 
ft  Company  in  Illinois."  yet  as  Iwth  parties  understood  that  the  stock 
in  question  was  in  Illinois,  and  intended  It  should  he  included  In  the 
sale,  the  title  passed  to  Walker  as  against  a  subsequent  purchaser,  with 
notice,  of  the  stock  in  Iowa.  Western  Stage  Co.  v.  Walkfr,  2  la.  504. 
Where  a  sale  is  attempted  of  i)art  of  a  greater  quantity  or  number 
there  must  be  some  iflenliflcation,  in  order  to  pass  the  title.  Martin 
V.  LeSan,  Iowa,  10.'.  N.  W.  996. 

A  sale  of  150,000  hIiIiikU-h  at  a  mill,  in  no  inanm-r  idcntifle<l.  din- 
tinguished  or  set  apart,  does  not  i)aKH  the  title,  Stcuiilill  r.  Ulalnr  Himk, 
11   Wash.  426,  39  I'ac.  814;   nor  a  promlso  to  d<livtT  Hl.vl.rn  I.uhIicIh  of 


62  THE    LAW    OF    REPLEVIN. 

wheat,  out  of.  the  promisor's  crop,  Mattison  v.  Hooberry,  104  Mo.  Ap. 
287.  78  S.  W.  642.  But  upon  sale  of  a  specific  quantity  of  a  particular 
kind  and  quality  of  paper,  there  being  on  hand  a  larger  quantity  of 
uniform  value  and  quality,  it  was  held  that  trover  would  lie  with  the 
same  effect  as  if  the  whole  mass  were  sold.  Riebling  v.  Tracy,  17  Ills. 
Ap.  158.  Where  the  parties  so  intend,  the  title  passes,  though  the 
quantity  of  the  commodity  sold  is  not  ascertained  and  something  re- 
mains to  be  done  by  the  vendor;  e.  g.,  the  harvesting  and  cribbing  of 
growing  corn,  Vaughn  v.  Owens,  21  Ills.  Ap.  249.  As  to  the  effect  of  a 
sale  of  a  specific  portion,  not  separated  or  identified,  out  of  a  mass, 
and  that  the  title  passes,  where  this  is  the  intention  of  the  parties,  see 
a  learned  article  in  GO  Cent.  L.  J.  4. 

Where  plaintiff  purchased  a  quantity  of  flour  in  store  in  a  certain 
ware-house  without  any  segregation  of  the  particular  flour  from  the 
other  barrels  of  like  flour  in  the  same  ware-house,  but  by  subsequent 
sales  and  removals  the  quantity  in  the  ware-house  was  reduced  to  a 
less  number  of  barrels  than  the  number  for  which  plaintiff  had  bar- 
gained, it  was  held  he  might  maintain  replevin  for  what  remained, 
Horr  V.  Barker.  6  Calif.  489.  The  title  may  pass  if  this  be  the  intention 
of  the  parties,  and  there  is  a  delivery,  although  the  goods  are  yet  to  be 
weighed  in  order  to  ascertain  the  quantity,  Pinckney  v.  Darling,  3  Ap. 
Div.    553,    38    N.    Y.    Supp.    411,    Wren    v.    Kuhler,    68    Mo.    Ap.    680 

Plaintiff  bought  fifty  barrels  of  flour  from  Clap  &  Company;  it  was 
in  defendant's  ware-house;  the  sellers  gave  plaintiff  an  order  on  the 
defendant  for  the  flour;  plaintiff  delivered  this  order  to  a  teamster, 
who  carried  it  to  defendant's  clerk,  and  obtained  a  "  flour  check." 
The  receipt  stated  that  the  flour  was  for  the  plaintiffs.  The  flour 
check  directed  a  delivery  of  fifty  barrels  of  flour  "  brand  of  Clap  & 
Company."  The  teamster,  according  to  the  usage,  carried  the  check  to 
another  employee  of  defendant  and  received  on  different  occasions 
twenty-two  barrels  of  the  flour;  the  other  twenty-eight  barrels  were  de- 
livered to  some  third  person  without  authority.  Held,  that  the  facts 
showed  a  selection  and  separation  of  the  twenty-eight  barrels  as  the 
flour  of  plaintiffs,  and  vested  in  plaintiffs  the  title  to  the  twenty-eight 
Darrels,  which  had  been  so  erroneously  delivered.  Hall  v.  Boston  Co., 
14  Allen,  439. 

A  symbolical  delivery  will  prevail  against  an  attachment  intervening 
before  a  delivery;  e.  g.,  the  delivery  of  a  bill  of  lading,  a  warehouse 
receipt,  a  railway  company's  receipt,  Russell  v.  O'Brien,  127  Mass.  349. 
The  endorsement  and  delivery  of  a  bill  of  lading  is  in  law  the  de- 
livery of  the  goods,  even  although  the  bill  of  lading  contains  no  words 
of  negotiability;  the  leaving  of  them  in  the  possession  of  the  carrier 
in  no  way  impairs  the  title,  Forbes  v.  The  Boston  Co.,  133  Mass.  154. 

But  if  there  is  a  general  custom  among  carriers  to  deliver  the  goods 
to  the  assignee  when  known,  without  requiring  production  of  the  bill 
of  lading,  and  the  carrier  having  no  notice  of  the  assignment,  makes 
delivery  to  the  assignee,  such  delivery  is  not  wrongful,  nor  is  the  car- 
rier chargeable.  Id. 


GENERAL    PRINCIPLES.  fi$ 

W.  and  E.  obtained  from  a  custom-house  inspector  a  certificate  that 
the  duties  had  been  paid  upon  certain  goods,  permitting  their  delivery. 
They  also  obtained  from  the  agent  of  the  Steamship  Company  by 
which  the  goods  had  been  transported,  a  certificate  that  the  fre.ght  had 
been  paid,  and  that  the  consignees,  W.  and  E.,  were  entitled  to  delivery. 
These,  with  a  written  order  from  W.  and  E.  to  deliver  to  the  plaintiffs, 
addressed  to  the  Steamship  Company,  were,  by  W.  and  E.  delivered  to 
a  teamster  employed  by  them  and  by  other  firms  who  had  general 
orders  from  the  plaintiffs  to  receive  and  deliver  them  all  merchandise 
which  should  arrive  for  them.  At  that  port  Steamship  Companies 
were  accustomed  to  deliver  goods  on  receipt  of  such  certificates,  per- 
mits and  orders.  The  teamster  went  with  the  papers  to  the  steamer's 
wharf,  where  she  was  discharging,  and  delivering  them  to  the  delivery 
clerk,  demanded  the  goods;  the  goods  were  identified  in  the  conver- 
sation, by  their  marks,  but  were  not  delivered  because  not  yet  raised 
from  the  hold.  During  this  conversation  the  teamster  held  the  papers 
in  his  hand,  the  clerk  saw  them,  but  did  not  examine  them.  The  clerk 
told  him  that  the  goods  would  be  out  in  a  day  or  two.  If  the  goods  had 
been  then  upon  the  wharf  the  teamster  would  have  been  permitted  to 
remove  them.  It  was  held  that  the  jury  were  warranted  in  inferring 
a  symbolical  delivery  and  the  passing  of  the  title,  and  that  such  de- 
livery took  precedence  of  a  subsequent  attachment,  Russell  r.  O'Brien, 
supra. 

Where  a  warehouseman's  receipt  is  negotiable  by  statute,  such  re- 
ceipt for  goods  purchased  of  the  warehouseman  carries  the  title,  even 
as  against  creditors  of  the  warehouseman.  The  delivery  of  the  re- 
ceipt is  delivery  of  the  goods,  Broadwell  r.  Howard,  77  Ills.  305,  citing 
Cool  V.  Phillips.  66  Ills.  217;  Gibson  v.  Stevens.  S  How.  384;  Horr  v. 
Barker.  8  Calif.  614;  Second  National  Bank  r.  Walbridge,  19  Of.  St. 
494;   S.  P..  Spangler  r.  Butterfield.  C  Colo.  3-30. 

But  it  is  held  that  where,  by  the  agreement,  the  vendor  is  to  do  any- 
thing with  the  goods  to  put  them  in  deliverable  condition,  the  perform- 
ance of  this,  in  the  absence  of  a  contrary  intention  manifested  in  the 
circumstances,  is  a  condition  precedent  to  the  vesting  of  the  proi)erty  In 
the  buyer.  Smith  Co.  v.  Holden.  73  Vt.  396.  51  Atl.  2.  A  distinction 
must  be  drawn  between  a  sale  and  an  agreement  to  manufacture. 
The  title  to  the  goods  does  not  vest  by  the  mere  force  of  an  agree- 
ment to  manufacture,  Stanley  v.  Robinson.  14  Ills.  Ap.  480.  Until 
thingK  manufactured  are  completed  and  ready  for  delivery  and 
notice  given  to  take  them  away,  or  some  such  act  done,  they  remain 
the  property  of  the  manufacturer.  Schneider  r.  Westerman.  25  IUb.  514; 
and  according  to  some  authorities,  until  delivery  Is  actually  made. 
Goodman  t".  Kennedy,  10  Neb.  270,  4  N.  W.  987;  and  If  th«'  manu- 
facturer sell  and  deliver  them  to  a  third  perH<»n  In  vlolutinn  of  hlH 
agreement,  the  party  with  whom  the  agreenuMit  to  m«nufacliir«»,  Ik 
made,  «annol  maintain  replevin  against  such  piir<has<'r,  hi.  Wicks 
contracted  to  manufacture  lunjlx-r  for  tin*  plalntirr,  tlu'  conlriict  wan 
by    b'ltfT.    in    which    it    was   de<larf(l    that   a    former    contrait    between 


64  THE    LAW    OF    REPLEVIN. 

plaintiffs  and  Connor,  should  be  the  contract  between  Wicks  and  the 
plaintiffs.  The  contract  with  Connor  provided  that  the  title  to  the 
logs  to  be  purchased  pursuant  thereto  by  Connor,  should  be  in  the 
plaintiffs.  In  Wicks'  case  the  logs  were  already  purchased  and  the 
greater  portion  of  them  at  his  mill,  the  lumber  in  controversy  was 
yet  to  be  manufactured  by  Wicks.  It  was  to  be  piled  at  the  saw-mill, 
distant  a  mile  and  a  half  from  the  place  of  delivery,  and  was  to  be 
delivered  upon  railway  cars,  graded,  scaled  and  accepted,  and  credit 
given  to  Wicks  at  the  end  of  each  month  ui)on  the  basis  of  an  inspec- 
tion made  after  the  lumber  was  loaded.  Plaintiffs  should  have  security 
upon  the  lumber  for  their  advances.  The  lumber  was  to  be  of  a  specified 
grade.  Held,  the  title  remained  in  Wicks,  and  there  having  been  no 
delivery,  and  plaintiffs  having  failed  to  comply  with  the  contract  in 
several  respects,  an  assumption  of  i)ossession  by  them  in  Wicks' 
absence,  was  a  mere  trespass,  Smith  v.  Wisconsin  Company,  114  Wis. 
151,  89  N.  W.  829. 

Every  sale  of  chattels  is  presumed  to  be  for  cash,  unless  the  con- 
trary is  expressed;  and  delivery  of  the  goods  does  not  waive  the 
right  of  the  seller  to  demand  immediate  payment  and  reclaim  the 
goods,  in  case  of  refusal.  Goldsmith  r.  Bryant,  26  Wis.  34;  Hopkins  v. 
Davis,  23  Ap.  Div.  235,  48  N.  Y.  Sup.  745.  Upon  sale  for  cash  the 
title  does  not  vest  until  full  payment  of  the  agreed  price,  Haines  v. 
Cochran.  26  W.  Va.  719;  McManus  v.  Walters,  62  Kans.  128,  61  Pac. 
686.  The  seller  must  exercise  his  right  within  a  reasonable  time, 
Goldsmith  v.  Bryant,  supra. 

Plaintiff  agreed  to  cut,  fit  and  lay  carpets,  hang  curtains,  and  set 
and  arrange  the  cornice  of  defendant's  house,  and  defendant  was 
then  to  pay  the  bill.  The  servant  who  completed  the  job  was  instructed 
to  demand  payment,  and  did  so.  Defendant  promised  to  come  to 
the  store  on  the  same  afternoon  and  make  payment,  but  defaulted. 
Held,  that  notwithstanding  the  delivery,  the  plaintiff  might  reclaim 
the  goods.  Goldsmith  v.  Bryant,  supra.  A  delay  of  two  weeks,  during 
which  repeated  demands  of  payment  were  made,  of  the  defendant's 
wife  and  daughter,  he  not  being  found,  was  not  unreasonable,  Gold- 
smith V.  Bryant,  supra.  But  where  the  goods  were  permitted  to  re- 
main in  the  hands  of  the  buyer  for  six  or  seven  months  it  was 
held  that  the  seller  could  not  reclaim  them  from  an  innocent  purchaser, 
Robbins  v.  Phillips,  68  Mo.  100.  And  an  unconditional  delivery  is  a 
waiver  of  the  right  to  demand  payment,  Powell  v.  Bradlee,  9  G.  &  J. 
220;  Martin  v.  Wirts,  11  Ills.  Ap.  50.7;  Hopkins  v.  Davis,  23  Ap.  Div. 
235,  48  N.  Y.  Sup.  745;  Kingsley  v.  McGrew,  48  Neb.  812,  67  N.  W.  787. 
But  not  so  if  the  thing  sold  was  delivered  merely  for  trial  and  the  pur- 
chaser was  to  take  it  only  on  a  particular  condition,  presently  to 
be  performed,  Hopkins  v.  Davis,  supra.  And  so  if  there  was  a  gener3l 
usage  in  the  market  to  deliver  the  goods  sold  without  demanding 
payment,  and  the  seller  dealt  with  reference  to  this  usage;  the  delivery 
in  such  case  does  not  waive  the  condition  of  payment  nor  vest  title 
in  the  purchaser,  Powell  v.  Bradlee,  supra.    Where  goods  are  sold  for 


GENERAL    PRINCIPLES.  65 

*'  cash  on  delivery,"  and  a  conditional  delivery  is  made,  the  seller 
may  recover  them  as  against  all  but  a  bona  fide  purchaser.  An  offer 
to  return  the  goods  because  unable  to  pay  for  them  requires  no  accept- 
ance. The  seller  may  maintain  replevin  against  the  sheriff  who  has 
levied  under  an  attachment  against  the  buyer.  Daugherty  v.  Fowler, 
44   Kans.  628,  25  Pac.  40.  10  L.  R.  A.  314. 

A  reservation  of  the  title  as  one  of  the  terms  of  a  sale  may  be  implied 
from  circumstances,  Mc.Manus  v.  Walters,  suijra.  There  is  no  occasion 
to  rescind  the  sale  in  order  to  maintain  the  action,  nor  need  the 
seller  return  what  he  has  received,  Thomson  r.  McLean,  59  Hun, 
627,  14  N.  Y.  Sup.  55. 

A  contract  that  Johnson  "  lias  sold  "  unto  Meeker  "  the  entire  crop 
of  hops  of  the  growth  of  the  year  1890,"  10,000  pounds,  to  be  delivered 
at  a  certain  railway  station  between  specified  dates;  Johnson  to  com- 
plete the  cultivation  of  the  hops,  pick,  cure  and  bale  the  same  and 
deliver  the  same,  of  strictly  choice  quality,  even  color,  well  and  equally 
picked  and  thoroughly  cured,  etc.;  Meeker  to  pay  a  specified  price 
"  no  delivery  and  acceptance."  Held,  no  title  passed,  even  though 
actual  delivery  and  acceptance  was  had,  the  price  not  then  being  paid; 
and  though  they  had  been  placed  in  Meeker's  care  for  shipment; 
Johnson,  having  for  default  of  payment  removed  them,  it  was  held 
that  Meeker  could  not  maintain  replevin,  Meeker  r.  Johnson,  3  Wash. 
247,  28  Pac.  542.  N  agreed  to  sell  to  S  all  his  cattle  of  a  certain  brand, 
at  a  price  named  per  head,  delivery  to  be  made  between  specified 
dates;  before  the  time  of  delivery  arrived  S  assigned  his  contract  to  H. 
A  new  contract  was  then  made  between  S  and  H,  by  which  the  cattle 
were  to  be  counted  as  1600  head,  and  the  title  was  to  remain  in  N 
until  full  payment.  Later  N  gave  an  order  upon  H  for  the  balance 
due  him,  which  H.  accepted,  with  the  added  words,  "  when  advanced 
money  paid  by  H  settled."  H  obtained  possession  of  the  cattle  with- 
out payment  of  the  b?lance  mentioned  in  this  order.  When  replevied 
by  N  it  was  held  that  the  last  contract  between  N  and  S  was  admissible 
in  connection  with  evidence  that  H  was  informed  of  it,  and  the  cattle 
was  delivered  under  it,  and  N  was  entitled  to  maintain  his  action. 
Nebeker  v.  Harvey.  21  Utah,  3C3.  60  Pac.  1029.  In  trustee  process,  it 
appeared  that  the  trustee  purchased  of  Reed  one  hog,  some  sugar  and 
other  things,  amounting  to  the  value  of  $30.  The  sale  was  for  cash. 
The  hog  was  changed  to  another  pen  upon  the  same  premises;  the 
sugar  was  mixed  with  sugar  of  the  trustee;  there  was  no  other  de- 
livery of  any  of  the  artirles.  While  the  trustee  hail  his  wallet  in 
his  hand,  intending  to  pay  the  price,  he  was  served  with  trustee 
process,  and  refused  to  make  payment.  Reed  then  demanded  his 
goods.  Held,  there  was  no  acompllshed  sale,  and  the  trustee  was 
discharged.  Paul  v.  Reed,  52  N.  H.  136.  And  If.  the  purehaHc  boln»c 
for  cash,  the  purchaser  obtains  the  goods  by  giving  a  cheek  upon  thi 
bank  where  he  has  no  funds,  and  of  which  he  has  no  roaBonubl' 
ground  to  expert  payment,  the  seller  may  rechilni  them.  Powell  v.  Hrnd 
lee.  aupra.  Canadian  Hank  v.  McCrea,  106  Ills.  281,  Cohen  i^.  AduniH. 
5 


€C  THE    LAW    OF    REPLEVIN. 

13  Tex.  Civ.  Ap.  118.  35  S.  W.  303.  So  if  he  obtain  the  goods  by  promise 
of  giving  a  good  endorser  for  balance  due,  in  which  promise  he  fails, 
.rennin?:s  v.  Gage,  13  Ills.  610. 

Where  goods  are  sold  with  the  privilege  of  exchange,  and  the  vendee 
retains  them  in  the  e.xeroise  of  this  i)rivilege,  any  loss  is  ui)on 
him;  the  title  remains  in  him  until  the  goods  reach  the  vendor,  Cook  v. 
Gross,  60  Ap.  Div.  446.  96  N.  Y.  Sup.  924. 

Gift. — If  donor  wrongfully  obtain  possession  after  a  perfected 
gift,  donee  may  maintain  replevin,  Schenck  v.  Sithoff,  75  Ind.  485.  To 
give  effect  to  a  gift  there  must  be  a  delivery,  actual,  so  far  as  the  thing 
is  susceptible  of  delivery,  either  to  the  donee  or  someone  for  him, 
with  the  donee's  consent.  The  delivery  may  be  symbolical  if  the  goods 
are  so  situated  that  dominion  thereof  may  be  completely  parted  with, 
Miller  r.  Le  Piere,  136  Mass.  20.  The  gift  is  effected  only  by  words 
of  present  donation;  words  signifying  a  purpose  to  be  carried  into 
effect  only  in  the  future  accomplish  nothing,  Spencer  v.  Vance,  57 
Mo.  427.  A  father  who  conveys  slaves  to  his  son  to  defraud  creditors 
cannot  repudiate  the  gift  on  the  score  of  his  own  fraud,  Newell  v. 
Newell,  34  Miss.  385.  There  may  be  an  effectual  gift  where  posses- 
sion is  assumed  by  the  donee,  though  he  leaves  it  in  the  house  of 
the  donor  who  resides  as  a  tenant  upon  donee's  premises,  Downey  v. 
Arnold,  97  Ills.  Ap.  91.  Shortly  before  marriage  a  piano  was  brought 
to  the  apartments  of  the  future  husband;  his  intended  wife  being 
present  he  told  her  it  was  a  present.  Ever  afterwards  it  was  treated 
by  both  as  the  property  of  the  wife.  Creditors  of  the  husband  having 
taken  it  in  execution  it  was  held  the  wife  might  replevy,  Williams  v. 
Hoehle,  95  Wis.  510,  70  N.  W.  556.  A  piano  purchased  by  the  father 
expressly  as  a  gift  to  the  child  and  donated  to  her,  and  which,  although 
kept  in  the  father's  house,  was  used  only  by  the  daughter,  and  was 
known  as  hers;  the  gift  was  held  to  be  irrevocable.  The  daughter 
was  allowed  replevin  as  against  a  mortgagee  of  the  father,  Kellogg  v. 
Adams,  51  Wis.  138,  8  N.  W.  115;  and  see  to  the  same  effect  Colby  v. 
Portman,  115  Mich.  95,  72  N.  W.  1098.  Gift  by  a  father  to  daughter 
of  a  piano;  it  was  delivered  into  the  daughter's  possession  while 
she  resided  with  her  parents.  She  exercised  acts  of  control,  excluding 
others  from  the  use  of  it  and  thus  continued  during  all  her  minority. 
In  replevin  by  one  claiming  under  bill  of  sale  from  the  father, 
judgment  for  the  defendant  was  affirmed,  Harris  v.  McCasland,  29 
Ills.  Ap.  430.  Plaintiff  offered  his  cow  at  a  lottery.  Defendant  and 
one  Joubar  each  claimed  to  have  won  it;  defendant,  in  plaintiiT's 
absence,  took  the  cow  away;  plaintiff  thereupon  executed  a  writing, 
transferring  to  him  all  his  right  and  declarins  "  I  hereby  deliver,  etc." 
With  this  document  plaintiff  and  .loubar  demande?!  the  cow  of  defend- 
ant. Held,  the  transaction  with  Joubar  must  be  regarded  as  a  gift  and 
not  consummate  until  actual  delivery,  and  the  plaintiff  might  sustain 
replevin,  Miller  v.  Le  Piere,  supra.  But  see  Bruce  v.  Squires.  68  Kans. 
199,  74  Pac.  1102.  A  gift  causa  mortis  to  be  effectual  must  be  made 
in   view  of  death  impending;    the  donor  must  die  from  the  disorder 


GENERAL    PRINCIPLES.  07 

or  peril  which  prompts  the  donation,  and  there  must  be  an  actual 
delivery.  Bruce  r.  Squires.  sui)ra.  The  donor  must  part  with  all 
present  and  future  dominion,  Carieton  r.  Lovejoy,  54  Me.  445.  As- 
surances by  a  father  to  a  child  who  for  a  long  time  has  had  control 
of  a  stock  of  merchandise  and  a  store  conducted  in  the  father's  name, 
that  she  shall  have  the  store  when  he  dies,  she  managing  for  him 
so  long  as  he  lives,  is  not  a  good  gift,  causa  mortis.  The  possession 
of  the  child  is  the  possession  of  the  father,  and  there  is  lacking  the 
necessary  change  of  possession,  Bruce  i\  Squires,  supra.  An  agree- 
ment that  a  third  person  in  possession  of  the  goods  shall  hold  them 
for  the  purchaser,  is  a  delivery.  High  iK  Emerson,  23  Wash.  103.  62 
Pac.  455.  Possession  by  a  carrier  or  a  warehouseman  for  the  vendor, 
becomes,  after  notice  of  sale  given  by  either  vendor  or  vendfee,  the 
possession  of  the  vendee,  Taylor  v.  Richardson,  4  Houst.  300.  The 
immediate  delivery  of  bulky  articles  situate  in  another  place  than 
that  of  the  sale  is  not  required;  possession  must  be  assumed  in  a 
reasonable  time  in  view  of  the  situation  of  the  persons,  the  goods, 
and  the  attending  circumstances,  Taylor  v.  Richardson,  supra.  In 
September  the  plaintiff  arranged  with  his  tenant  of  a  certain  farm 
under  lease  expiring  in  the  March  following,  that  the  tenant  should 
vacate  at  the  expiration  of  the  lease,  and  plaintiff  then  bought  of 
the  tenant  his  livestock,  farming  utensils,  hay  and  grain  upon  hand; 
the  stock  remained  upon  the  farm,  but  plaintiff's  employee  sent  to 
reside  there,  fed  and  cared  for  it  and  had  exclusive  control  of  it  for 
some  considerable  time;  after  that,  plaintiff  had  charge  of  it,  visiting 
the  farm  frequently,  counting  and  salting  the  cattle  which  were 
running  at  large.  During  all  this  time  the  tenant  remained  on,  the 
farm.  Held,  there  was  sufficient  change  of  possession  even  as  against 
the  creditors  of  the  tenant,  Haberer  i\  Walzer,  109  Ills.  Ap.  371.  De- 
livery according  to  the  nature  of  the  thing  is  all  that  is  required; 
the  removal  of  the  mass  of  corn  in  a  crib  or  other  cumbrous  thing, 
is  not  necessary  to  constitute  delivery.  Hart  v.  Wing,  44  Ills.  141; 
May  V.  Tallman,  20  Ills.  443;  or  a  stack  of  hay.  or  standing  corn. 
Ticknor  v.  McClelland,  84  Ills.  471;  Lufkin  r.  Preston.  52  la.  23C.  3 
N.  W.  58.  Plaintiff  called  for  corn  which  he  had  purchased,  the  de- 
fendant pointed  to  a  crib,  saying  "there  is  your  corn;  "  the  plaintiff, 
after  debating  with  another  as  to  the  quantity,  accepted  it  and  removed 
part.  Held,  that  delivery  was  sufficient  as  between  the  parties  to 
pass  title,  May  v.  Tallman,  supra.  A  delivery  of  one  Blave  In  the 
name  of  several  is  sufficient  to  give  effect  to  a  gift  of  all  the  siaveB 
mentioned  in  the  deed  of  gift,  Newell  v.  Newell.  34  MIhs.  SSfi.  Tho 
pledge  of  a  warehouse  receipt  Ik  in  effect  the  sale  of  the  Roods  de- 
scribed theroln,  Hanchett  v.  Buckley,  27  Ills.  Ap.  159.  Coods  wen» 
shipped  in  the  name  of  the  seller;  he  endorned  the  hill  of  ladhiK  to 
the  buyer  and  deposited  It.  a<ldreHsed  to  him.  In  Ihe  poHtofflce.  Held 
a  constructive  delivery  of  the  goods.  McC'orinlck  t'.  JoKcph.  77  Ala.  23C. 
and  see  National  Hank  v.  Uearborn,  115  Mass  211i;  Bank  of  RochcHler 
V.  Jones,  4  Comst.  497. 


68  THE    LAW    OF    REPLEVIN. 

Hoio  far  Transfer  by  Plaintiff  iwpairs  his  Right. — The  fact  that  the 
Roods  are  subject  to  a  prior  lien  against  the  plaintiff  does  not  im- 
pair his  right  to  recover  them,  e.  g.,  goods  subject  to  a  landlord's 
lien,  Stockwell  v.  Robinson,  9  Houst.  314,  32  Atl.  528.  Goods  subject 
to  a  prior  levy,  Schenck  v.  Sithoff,  75  Ind.  485.  One  who  has  put  up 
his  goods  at  lottery,  may  nevertheless  recover  them  from  a  trespasser, 
and  the  circumstance  that  his  purpose  is  to  deliver  them  to  the  winner 
in  the  lottery  does  not  impair  his  right  of  action,  Martin  v.  Hodge,  47 
Ark.  378,  1  S.  W.  G94.  One  who  has  agreed  to  exchange  with  another 
his  goods  for  lands,  but  declines  to  deliver  the  goods,  for  the  failure 
of  the  purchaser  to  furnish  and  turn  over  insurance  policies,  and 
returns  the  goods  to  his  own  premises,  may  replevy  the  same  from 
an  officer  who  levies  thereon  under  an  execution  against  the  proposed 
purchaser;  the  seller  is  not  concluded  by  an  admission  that  he  had 
sold  the  goods,  or  that  they  belonged  to  the  other  party,  Lewis  v. 
Birdsey,  19  Ore.  164,  26  Pac.  623.  A  married  woman,  fearing  that  her 
property  might  be  taken  by  her  husband's  creditors,  included  it  in 
a  bill  of  sale  to  the  defendant  to  protect  it,  but  not  intending  to  pass 
the  title.  Held,  she  might  nevertheless  maintain  replevin,  Blooming- 
dale  V.  Chittenden,  75  Mich.  305,  42  N.  W.  836.  A  father  who  has 
made  a  gift  of  livestock  to  one  of  his  children  without  any  intention 
that  it  shall  be  separated  from  the  herd,  may  maintain  replevin  against 
the  wrong-doer,  Filley  v.  Norton,  17  Neb.  472,  23  N.  W.  347.  A  deed 
of  trust  executed  as  security  and  binding  the  donor  to  deliver  the 
articles,  does  not  defeat  his  action  for  the  value  against  one  who 
has  converted  the  goods,  Haines  v.  Cochrans,  26  W.  Va.  719.  Where 
a  marriage  contract  recites  the  desire  of  the  intended  wife  to  secure 
her  property  "  for  her  sole  and  separate  use  and  free  from  the  control 
of  her  intended  husband,"  appoints  a  trustee  for  the  intended  wife  and 
"  for  all  and  singular  her  property,  real  and  personal,  to  keep,  preserve 
and  assure  the  same  forever  unto  the  said  Camilla,"  the  title  remains 
in  the  intended  wife,  and  her  executor  may  sue  in  trover  for  the 
value  if  the  goods  are  converted,  Liptrot  v.  Holmes,  1  Kelly,  381.  But 
where  the  owner  of  goods  has  leased  them  to  another  for  a  term  not 
yet  expired,  and  delivered  possession,  he  cannot  maintain  replevin 
against  an  officer  who  levies  upon  them  under  execution  against 
the  tenant.  Gazelle  v.  Doty,  73  Ills.  App.  406. 

A  mortgagee  who  has  assigned  his  mortgage  as  collateral  security 
for  a  debt,  cannot  maintain  replevin  for  the  mortgaged  chattels, 
Kavanaugh  v.  Brodball,  40  Neb.  875,  59  N.  W.  517.  One  who  sells 
goods  which  are  in  adverse  possession,  but  with  the  condition  that 
he  shall  recover  them,  may  maintain  replevin  therefor,  Bemis  v. 
De  Land,  177  Mass.  182,  58  N.  E.  684. 

Purchaser  at  Execution  Sale. — Purchaser  at  execution  sale  acquires 
no  right  if  the  goods  belong  to  a  stranger  to  the  writ,  .lacob  v.  Watkins, 
3  App.  Div.  422,  38  N.  Y.  Sup.  763.  Irregularities  in  the  sale  cannot 
be  relied  upon  as  a  defense;  e.  g.,  that  the  goods  were  levied  upon 
in  bulk  and  that  the  levy  did  not  afford  a  sufficiently  particular  descrip- 


GENERAL    PRINCIPLES.  G9 

tion,  Boyce  r.  Canon,  5  Houst.  409;  nor  the  fact  that  the  goods  were 
left  in  the  hands  of  the  execution  debtor.  The  statute  against  the  sale 
of  goods  without  actual  delivery  has  no  application  to  a  public  sale 
under  execution,  Id.;  nor  the  fact  that  the  goods  were  not  present  at 
the  sale,  Hazzard  r.  Burton,  4  Har.  Del.  62.  And  the  plaintiff,  produc- 
ing title  under  execution  sale,  is  under  no  duty  to  show  that  the 
officer  was  an  officer  de  jure.  Lufkin  v.  Preston,  52  la.  236,  3  N.  W. 
58.  Defendant  in  execution  who  attends  the  sale  and  objects  thereto, 
on  the  sole  ground  of  the  statutory  exemption,  cannot  in  replevin 
against  the  officer,  the  creditor,  and  the  purchaser,  assert  that  the 
sale  was  at  an  improper  place;  having  given  one  reason  for  his 
objection  he  cannot  afterwards  assert  an  additional  reason,  Redinger  r. 
Jones,  68  Kans.  627,  75  Pac.  997.  One  who  purchased  goods  belong- 
ing to  a  partnership,  on  execution  against  one  of  the  firm,  acquires 
no  right  to  the  possession  of  the  chattels,  Reinheimer  v.  Hemingway, 
35  Pa.  St.  432. 

Execution  sale  of  goods  which  are  a  quarter  of  a  mile  distant  from 
the  place  of  sale  confers  no  title,  Lawry  v.  Ellis.  85  Me.  500,  27  Atl.  518; 
so  if  the  sale  is  of  only  part  of  a  larger  quantity  and  there  is  no 
separation  or  delivery.  Id.  But  a  party  to  a  proceeding,  must  object 
to  irregularities  promptly;  if  he  delay  until  third  persons  acquire 
rights  in  such  proceeding  he  will  not  be  heard  to  complain,  Riggs  v. 
Coker,  69  Miss.  266,  13  So.  814. 

EquitahJe  Title. — Plaintiff  cannot  recover  upon  a  mere  equitable 
right;  as  where  the  husband  purchased  bonds  in  his  own  name  with 
the  wife's  money,  Leete  r.  Bank  of  St.  Louis,  141  Mo.  584,  42  S.  W. 
927.  Plaintiff  must  rest  on  a  legal  and  not  an  equitable  right.  One 
claiming  a  motor  cycle  for  which  he  contested  in  a  voting  contest 
but  which  was  determined  by  the  committee  in  charge  in  favor  of 
the  defendant,  cannot  prevail,  Fisher  v.  Alsten,  186  Mass.  549,  72  N.  E. 
78.  A  mere  equity  will  not  sustain  the  statutory  action  of  detinue. 
Jones  V.  Anderson.  76  Ala.  427.  A  mere  equity  without  the  right  to 
reduce  the  goods  to  possession  will  not  sustain  replevin.  National  Bank 
of  Deposit   V.  Rogers,   1    Ap.   Div.   623,  37   N.   Y.   Sup.   365. 

Mortgagee. — Mortgagee  entitled  by  the  terms  of  the  mortgage  to 
as.sume  possession  upon  default  of  interest,  may,  upon  such  default, 
maintain  replevin,  Flinn  v.  Ferry,  127  Calif.  648.  60  Pac.  434;  Fuller  v. 
Brownell,  48  Neb.  145;  67  N.  W.  G.  If  the  goods  are  attached  under 
invalid  procens,  the  mortgagee  may  maintain  replevin  against  thi' 
officer.  Allen  v.  Wright,  134  Mass.  347.  The  nfislgnmi'nt  of  a  mort- 
gage paHHOR  to  the  assignee  a  legal  title,  Hussell  v.  Walker.  73  Alii. 
315.  The  mortgagee  who  has  a88lgnc<l  tht-  ^lorfga^;(^  even  an  rollati-ra) 
8e<;urlty,  cannot  maintain  replevin.  Kavanauuh  »•  lirodball,  40  N«'l». 
875,  59  N.  W.  517.  A  mortgage'  i'xe<!Utcd  at  a  form<T  date  and  a  Bali- 
under  It  to  the  plaintiff  without  any  evidence  of  title,  right  or  pohhi-h 
8lon  In  the  mortgageor,  Ih  not  Hufflclent  to  maintain  replevin,  Peterson 
r.   I^dwl(k,  44   Neb.  771.  62   N.   W.   1100. 

Pledgor   and    Pledgee. — By    a    pletlgo    a    Hpcclal    title    pasaeH    to    lb" 


TU  THE    LAW    OF    REPLEVIN. 

pledgee,  which  depends  on  the  actual  continued  possession  of  the 
pledge.  In  the  absence  of  statute  no  record,  or  even  written  evidence 
of  a  pledge  is  required,  Mitchell  r.  McLeod.  Iowa,  104  N.  W.  349. 
Pledgor  may  sell  subject  to  the  pledge,  Ottumwa  Bank  v.  Totten,  Mo. 
89  S.  W.  65;  Harding  v.  Eldredge.  18G  Mass.  39,  71  N.  E.  115.  Pledgee 
who  leaves  the  goods  with  the  pledgor  until  his  death  cannot  by  re- 
taking them  defeat  the  right  of  the  pledgor's  administrator,  after- 
wards appointed,  Thompson  i;.  Dolliver,  132  Mass.  103;  Vinal  v.  Spof- 
ford,  139  Mass.  120,  29  N.  E.  288.  But  the  pledgee  may  permit  the 
pledgor  to  take  and  use  the  pled.^e  for  any  special  limited  purjiose.  Id. 
The  right  of  the  pledgee  depends  upon  that  of  the  pledgor,  and  one  who 
advances  money  upon  the  pledge  of  goods  to  which  the  pledgor  has 
no  title,  nor  muniment  of  title,  nor  even  possession,  acquires  no  right, 
Chicago  Co.  v.  Lowell,  60  Calif.  454.  A  factor  has  no  authority  to 
pledge  the  goods  of  his  principal,  Ludden  v.  Buffalo  Co.,  22  Ills  Ap. 
415.  And  the  pledgee  is  chargeable  with  notice  of  the  owner's  rights, 
Leet  V.  Wadsworth,  5  Calif.  404.  And  the  pledge  must  be  for  a  lawful 
debt;  where  by  statute  a  pledge  to  secure  a  loan  at  usury  is  void,  any 
person  may  raise  the  question,  and  one  whose  agent  in  the  possession 
of  negotiable  paper  of  the  principal  has  converted  it  and  pledged  it 
for  a  loan  which  bears  usury,  may  avail  himself  of  this  infirmity  in 
the  transaction  to  avoid  the  pledge,  and  may  recover  the  paper  though 
he  had  clothed  his  agent  with  an  apparent  title,  and  the  defendant 
made  the  loan  without  any  knowledge  of  the  plaintiff's  rights,  Keim  v. 
Vette,  167  Mo.  389,  67  S.  W.  223.  And  where  the  indebtedness  is  paid 
or  tendered  and  the  pledgee  refuses  to  surrender  the  pledge,  the 
pledgor  may  have  replevin,  Latta  v.  Tutton,  122  Calif.  279,  54  Pac.  844. 
If  no  objection  is  made  to  the  amount  of  the  tender  its  sufficiency  is 
admitted.  Id.  And  the  pledgee  cannot  refuse  to  return  the  pledge 
because  another  is  claiming  it;  even  although  the  adverse  claimant  has 
brought  his  action  and  made  the  pledgee  party  thereto,  Cass  v.  Higen- 
botam,  100  N.  Y.  248,  3  N.  E.  189.  And  where  the  pledgee  has  con- 
verted the  pledge  the  pledgor  may  sue  without  making  demand.  Cox  v. 
Albert,  78  Ind.  241.  But  the  pledgee  may  recoup  the  amount  of  the 
debt,  Maryland  Co.  v.  Dalrymple,  25  Md.  242.  So  if  the  pledgor  re- 
possesses himself  wrongfully  of  the  goods  and  disposes  of  them  to  a 
stranger  who  has  notice  of  the  pledge,  the  pledgee  may  have  replevin, 
Harkey  v.  Tillman,  40  Ark.  551;  Where  the  delivery  is  symbolical, 
e.  g.,  a  warehouse  receipt,  the  pledgor  has  no  right,  independent  of 
statute,  to  substitute  other  goods.  He  must  retain  the  identical  goods. 
In  re  St.  Paul  Co.  Min.  94  N.  W.  218. 

Partnerships. — A  purchase  by  two  persons  of  an  article  of  personal 
property  does  not  constitute  them  a  partnership,  Ingals  v.  Ferguson, 
59  Mo.  Ap.  299.  A  partner  cannot  maintain  replevin  against  his 
co-partner  for  partnership  goods,  Jenkins  v.  Mitchell,  40  Neb.  664, 
59  N.  W.  90;  and  if  the  action  is  defeated,  the  defendant  partner  is 
entitled  to  return  of  the  goods,  and,  in  the  alternative,  the  full  value. 
The  rights  of  the  partners  in  the  fund  are  to  be  determined  in  some 


GENERAL    PRINCIPLES.  71 

other  proper  proceeding.  Id.  The  defeated  partner  is  estopped  to 
assert,  in  the  action  on  the  bond,  a  partnership  which  his  action  of 
replevin  ignored,  or  to  assert  equitable  considerations  against  the 
judgment  in  the  action  of  replevin,  Clapham  r.  Crabtree,  72  Me.  473. 
But  if  the  articles  of  co-partnership  provide  that  upon  dissolution 
one  of  the  firm  named  shall  "  be  entitled  to  the  assets  and  property 
of  the  firm,"  he  becomes  vested  with  the  absolute  title  upon  dissolu- 
tion, and  may  maintain  replevin  against  the  other,  Depew  v.  Leal, 
2  Abb.  Pr.  131.  A  sale  by  one  partner  of  the  partnership  goods,  made 
otherwise  than  in  the  ordinary  course  of  business,  against  the  expressed 
objections  of  the  other  partner,  to  one  who  has  notice  of  all  the  facts, 
does  not  impair  the  title  of  the  firm,  or  of  one  who  is  afterwards  ap- 
pointed receiver  of  its  effects,  Yeager  r.  Wallace.  57  Pa.  St.  3C5.  Rut 
a  majority  of  the  firm  may,  although  the  firm  is  about  to  expire,  effectu- 
ally dispose  of  the  partnership  goods  in  spite  of  the  objections  of 
a  minority,  Western  Stage  Co.  v.  Walker,  2  la.  504.  But  if  the  ma- 
jority are  acting  in  bad  faith  towards  the  minority,  the  sale  will  not 
pass  the  interest  of  the  dissenting  partner;  and  the  purchasers  be- 
come tenants  in  common  with  such  dissenting  partner,  and  cannot 
replevy  from  him.  Id.  The  sheriff  may  on  execution  against  one  of 
a  firm  levy  upon  and  take  into  possession  the  partnership  goods, 
sell  the  debtor  partner's  interest  and  deliver  the  goods  to  the  purchaser 
and  the  other  partners,  Ferguson  v.  Day,  6  Ind.  Ap.  138,  33  N  E.  213. 
But  in  Daniels  v.  Owens,  70  Ala.  297,  it  was  held  that  the  purchaser 
does  not  acquire  the  right  to  possession  of  the  property  purchased,  as 
against  the  other  members  of  the  firm.  The  sheriff  cannot  levy  upon 
specific  articles  of  partnership  property;  his  levy  must  be  upon  the 
interest  of  the  partner  in  the  whole  partnership  property,  Ferguson  v. 
Day,  supra;  and  if  he  levies  on  specific  articles  of  i)artnership  prop- 
erty, taking  them  into  possession  for  sale  as  the  property  of  the 
individual  debtor,  in  disregard  of  the  rights  of  the  other  members 
of  the  firm,  he  becomes  a  trespasser  ab  initio,  and  all  the  jjurtners 
may  unite  in  an  action  of  replevin.  Id.  But  the  sheriff  may  in  his 
return  enumerate  the  property  taken,  without  invalidating  his  levy, 
if  in  fact  he  takes  the  whole  partnership  property,  Wober  v.  Hertz, 
188  Ills.  08,  58  N.  E.  C76.  And  the  sheriff  cannot  sell  specific  articles, 
but  only  the  indebted  partner's  interest  in  the  whole  partnership 
assets,  Daniel  v.  Owens,  supra.  The  purchaser  acquires  only  the 
interest  of  the  debtor  partner,  that  is  his  share  in  what  remains  after 
all  liabilities  of  the  firm,  inchuling  those  to  the  other  jjurtners,  arc 
satisfied,  Hannon  v.  O'Dell,  71  Conn.  fi98.  43  Atl.  147.  If  the  partnership 
is  insolvent  at  the  date  of  the  officer's  levy  the  purchaser  taUes  nothinK 
and  can  recover  nothing  In  an  action  on  the  bond,  when  the  Kood8 
are  replevied.  Id.  The  levy  of  an  attachment  against  an  Individual 
partner,  iipon  the  imrtnership  goods,  does  not  dlHsoIve  tlu-  partncrHhIp; 
and  If  the  partners  replevy  the  goods  tlicy  may  deal  tJicrewlth 
precisely  as  if  there  ha«l  never  been  a  levy;  and  the  fad  tlint  the  debtH 
exlHting  at  the  lime  (jf  the  levy  are  discharged,  unri  new  ilebtM  created. 


72  THE    LAW    OF    REPLEVIN. 

in  no  manner  enlarges  the  liability  of  the  sureties  in  the  replevin  bond, 
Hannon  v.  O'Dell,  supra.  The  officer  attaching  partnership  goods  upon 
a  writ  against  one  of  the  firm,  takes  only  the  interest  of  the  partner 
subject  to  all  partnership  liabilities;  but  he  may  take  actual  posses- 
sion of  the  goods  and  hold  the  entire  property  in  his  hands,  subject 
to  the  paramount  claim  of  partnership  creditors,  Hacker  v.  Johnson, 
fiG  Me.  21.  And  if  the  partnership  has  in  good  faith  transferred  all 
the  partnership  property,  no  partner  has  any  remaining  interest 
which  can  be  taken,  even  although  no  provision  is  made  for  the  partner- 
ship debts,  Densmore  Co.  v.  Shong,  98  Wis.  380,  74  N.  W.  114.  A 
partner  cannot  replevy  the  partnership  goods  from  an  officer  who, 
proceeding  regularly,  has  taken  them  under  process  against  the  other 
partner,  Weber  v.  Hertz,  87  His.  Ap.  GOl,  S.  C.  188  Ills.  68,  58  N.  E. 
C7G. 

Husband  and  Wife. — The  wife  carrying  on  business  as  a  sole  trader, 
may  recover  her  goods  from  the  sheriff  who  has  taken  them  on  execu- 
tion against  her  husband,  Gavigan  v.  Scott,  51  Mich.  373,  16  N.  W.  7G9. 
A  married  woman  may,  in  Missouri,  maintain  replevin  against  her 
husband.  Beagles  v.  Beagles,  95  Mo.  Ap.  338,  68  S.  W.  758.  The  wife 
may  replevy  the  product  of  her  own  lands  where  taken  in  execution 
for  the  husband's  debt,  Taylor  v.  Taylor,  12  Lea.  490.  Where  hus- 
band and  wife  are  residing  together,  his  possession  of  slaves,  which 
are  the  separate  property  of  the  wife,  is  the  possession  of  the  wife, 
McNeill  V.  Arnold,  17  Ark.  179.  The  wife  is  entitled  to  the  wheat 
grown  by  lier  upon  her  husband's  homestead  claim  under  a  lease 
granted  by  the  husband  before  patent  issues,  whether  such  lease  be 
valid  or  void,  and  she  may  replevy  it  from  an  officer  who  takes  it  in 
execution  against  the  husband,  Burchett  v.  Hamil,  5  Okla.  300,  47 
Pac.  1053.  The  husband  cannot  replevy  from  the  wife  exempted  goods, 
where  by  statute  she  is  authorized  to  sue  for  the  same,  as  if  her 
separate  property,  Smith  v.  Smith,  52  Mich.  539,  18  N.  W.  347.  The 
wife  is  the  agent  of  the  husband  to  have  charge  of  her  deceased 
mother's  wearing  apparel  until  an  administrator  is  appointed;  and 
to  deliver  it  for  safe  keeping  to  another.  The  husband  cannot  main- 
tain trover  against  such  depositary,  Lawrence  v.  Wright,  23  Pick. 
128.  The  husband  cannot  create  a  valid  crop  lien  upon  a  crop  grown 
or  to  be  grown  on  the  wife's  land;  and  where  the  common  law  disa- 
bility of  the  wife  obtains,  a  verbal  assent  to  the  husband's  action 
will  be  without  effect,  Rawlings  v.  Neal,  126  N.  C.  271,  35  S.  E.  597. 
And  where  the  husband  in  such  case  acts  in  his  own  name  the  conduct 
of  the  wife,  after  his  death,  will  not  ratify  it.  The  contract  is  void 
as  to  her  and  incapable  of  ratification.  Id. 

Infant. — Where  an  infant  has  been  emancipated  by  his  father,  his 
acquisitions  are  his  own.  One  claiming  under  a  transfer  from  the 
father  has  no  right,  Francisco  v.  Benepe,  6  Mont.,  243,  11  Pac.  637.  An 
infant  who  has  sold  goods  need  not  formally  renounce  the  sale;  a  mere 
demand  for  them  is  sufficient,  George  v.  Hewlett,  70  Miss.  1,  12  So.  855. 

Lien. — Actual  possession  and  a  lien  for  money  advanced,  or  a  prec- 


GENERAL    PRINCIPLES.  73 

edent  debt,  is  a  sufficient  title.  Gafford  v.  Stearns.  51  Ala.  434.  A 
factor  holding  goods  for  advances  made  by  him  may.  if  his  possession  be 
disturbed,  have  replevin,  Williams  v.  Bugg.  10  Mo.  Ap.  585. 

Officer  in  Possess. oti  under  Process. — An  officer  who  has  taken  goods 
under  valid  process  has  a  special  property  which  entitles  him  to 
retain  the  possession,  and  may  maintain  replevin  if  his  possession 
is  disturbed,  Pugh  v.  Calloway,  10  O.  St.  4S8;  even  though  he  leaves 
the  goods  in  possession  of  the  defendant  in  execution,  taking  bond 
for  their  delivery,  Id.;  or  taking  the  receipt  of  the  defendant's  agent, 
Chicago  Co.  r.  Reid.  74  Mich.  366.  41  N.  W.  1083. 

Plaintiff  in  replevin  obtains  by  his  writ  and  the  execution  of  it,  a 
mere  temporary  right  of  possession.  If  the  defendant  be  an  officer 
who  holds  under  a  levy,  his  right  revives  upon  the  death  of  the  plain- 
tiff, and  the  consequent  abatement  of  the  suit,  and  he  may  maintain 
replevin.  Burkle  r.  Luce,  1  Comst.  163;  even  against  a  purchaser  from 
the  plaintiff,  Lockwood  v.  Perry,  9  Mete.  440. 

Bailor  and  Bailee. — Wool  .'supplied  by  the  plaintiff  to  the  tenant  of  a 
factory,  the  woven  product  to  be  returned  to  him  at  a  certain  price 
per  yard;  plaintiff  is  in  law  the  owner,  and  may  recover  the  goods 
manufactured  from  the  wool  from  the  landlord  who  distrains  them 
for  rent,  or  takes  them  on  execution  for  the  debt  of  the  tenant,  Knowles 
r.  Pierce,  5  Houst.  178.  Grain  brought  by  the  proprietor  of  an  elevator 
for  another  with  money  furnished  by  the  other,  is  the  property  of 
the  latter  and  not  liable  to  execution  for  debts  of  such  proprietor 
of  the  elevator,  though  stored  with  him.  Cool  v.  Phillips,  GG  Ills.  21G. 
The  fact  that  the  ware-houseman  discharges  part  of  the  purchase  price 
of  the  grain  by  cancelling  demands  which  he  holds  in  his  own  right 
against  those  from  whom  he  purchased  does  not  affect  the  result.  Id. 
An  agent  employed  to  purchase  grain  for  the  plaintiff  with  money 
furnished  by  the  plaintiff,  made  the  purchase  in  his  own  name;  de- 
fendant, without  any  notice  of  the  rights  of  the  plaintiff,  imnhased  the 
grain  from  the  agent  in  satisfaction  of  moneys  due  dcfondant  for 
like  purchases  made  by  the  same  agent  on  his  account:  ho  immediately 
took  possession  and  retained  the  grain.  It  was  held  that  he  obtained 
a  good  title  and  was  not  accountable  to  the  plaintiff,  Koch  r.  Willi, 
G3  Ills.  144.  Goods  were  shipped  by  express  C.  O.  D.;  by  the  fratid 
of  consignee,  the  agent  of  the  express  company  was  induced  to  de- 
liver them  for  a  post-dated  check  which  was  dishonored.  Held  the 
express  company  might  recover  them  from  an  officer  who  nftachert 
them  In  the  hands  of  the  assignee.  American  Co.  v.  Wlllsie,  79  Ills.  92. 
If  one  deliver  hl.s  grain  to  a  warehouseman  not  to  be  returned  to 
him,  but  to  be  shipped  and  ho1<1  by  the  warc-hoiisiMuaii,  tho  depohltor 
to  be  paid  on  demand  the  market  price  on  the  day  of  the  saU-,  the  title 
paHBCH  to  the  ware-houseman,  I.onergan  r.  Stewart.  t>r>  IIIh.  44.  If  tho 
thing  deposited  Ih  to  be  returned,  though  in  an  altered  form,  then 
tho  transaction  Ik  a  Imllment,  Id.  GoodH  were  Hhlpprd  to  the  plulntlfT 
to  \)f  dellvererl  to  defendant  on  payment  of  a  draft  for  the  price,  th<' 
defendant    obtained    pohhohhIou    for    the    purpose    of   examination    nn<t 


74  THE    LAV/    OF    REPLEVIN. 

failed  to  pay  the  draft;  plaintiff  was  entitled  to  replevy,  West  Michigan 
Bank  v.  Howard,  52  Mich.  423.  18  N.  W.  199. 

Title  by  Finding. — The  servant  who  finds  lost  money  upon  the  floor 
of  the  hotel  where  he  is  employed,  is  entitled  to  it  as  against  the  master, 
Hamaker  v.  Blanchard,  90  Pa.  St.  377.  But  where  one  casually  leaves 
his  purse  when  making  payment  of  a  bill,  the  purse  is  not  lost  and 
the  finder  gains  no  title,  Kincaid  v.  Eaton,  98  Mass.  139.  The  owner 
of  hides  left  them  in  vats,  not  intending  to  abandon  them;  they  were 
accidentally  overlooked  and  forgotten  for  forty  years.  Held,  that  the 
finder  still  acquired  no  property,  Livermore  v.  White,  74  Me.  452,  43 
Am.  Rep.  600. 

An  aerolite  is  the  property  of  the  owner  of  the  land  where  it  falls, 
and  not  of  the  first  finder,  Goddard  v.  Winchell,  8G  Iowa,  71,  52  N.  W. 
1124. 

Goods  Acquired  in  another  State. — The  title  to  goods  acquired  in 
one  state  and  carried  into  another,  will,  as  between  husband  and  wife, 
depend  on  the  laws  of  the  state  of  acquisition,  Shumway  v.  Leakey, 
67  Calif.  459,  8  Pac.  12.  A  pledge  is  to  be  construed,  and  its  validity 
and  effect  determined  by  the  laws  of  the  state  where  the  goods  are 
at  the  time  of  the  transaction,  even  though  the  note  secured  thereby 
is  expressly  payable  in  a  different  state.  In  re  St.  Paul  Co.  Min.  94 
N.  W.  218.  If  the  goods  are  in  different  states,  the  law  of  each  state 
controls  as  to  what  is  in  that  state,  Id. 

Things  Severed  from  Realty. — One  who  has  purchased  from  the 
owner  of  lands  the  mere  right  to  cut  trees  thereon,  may  maintain 
replevin  against  one  who  cuts  trees  upon  the  land,  without  right, 
Gamble  v.  Cook,  106  Mich.  561,  64  N.  W.  482;  Keystone  Co.  v.  Kolman. 
94  Wis.  465,  69  N.  W.  165.  The  mortgagee  of  lands  in  California 
has,  until  foreclosure,  a  mere  lien:  he  is  not  entitled  to  possession 
until  the  expiration  of  the  period  allowed  for  redemption;  he  there- 
for cannot  maintain,  previous  to  that  date,  replevin  for  a  house  re- 
moved by  the  mortgageor,  after  the  mortgage  sale  and  before  the 
right  of  redemption  is  gone.  Peoples  Bank  v.  .Tones,  114  Calif.  422,  46 
Pac.  278.  The  bare  possession  of  another's  land  does  not  authorize 
the  possessor  to  fell  trees,  and  one  purchasing  from  such  wrong- 
doer, though  in  good  faith,  gains  no  title,  Reid  v.  King,  89  Ky.  388, 
12  S.  W.  772.  But  if  in  fact  the  one  in  possession  being  the  owner, 
had  conveyed  the  lands  to  the  plaintiff  upon  secret  trust  to  defeat 
his  creditors,  one  purchasing  from  him,  and  not  in  any  way  connected 
with  the  fraudulent  transfer,  may  show  the  facts  and  thus  establish  the 
authority  of  the  vendor  remaining  in  possession  to  cut  and  dispose 
of  the  timber  as  his  own.  Id.  One  seeking  to  recover  logs  as  the  owner 
of  the  lands  upon  which  they  were  cut,  must  show  either  title,  or 
possession  of  the  lands,  Webb  v.  Phillips,  26  C.  C.  A.  272,  80  Fed.  954. 
Doubtful  evidence  of  brief  possession  more  than  twenty  years  before 
the  trespass,  will  not  suffice.  Id. 

Things  Severed  from  Land  in  Adverse  Possession. — The  product  of 
land    in   the    actual    adverse   possession    of   the    defendant   cannot   be 


GENERAL    PRINCIPLES.  75 

recovered  in  replevin,  even  by  one  who  had  an  earlier  actual  posses- 
sion and  upon  whose  possession  i)laintiff  had  forcibly  entered.  Page  r. 
Fowler.  28  Calif.  605;  but  this  judgment  was  reversed  in  the  Supreme 
Court  of  the  United  States,  where  it  was  held  that  the  actual  and 
peaceable  possession  of  public  lands  is  not  to  be  invaded  under  claim 
of  the  right  of  pre-emption,  and  with  intent  to  initiate  a  pre-emption 
under  the  Acts  of  Congress,  and  that  one  so  entering  is  a  mere  tres- 
passer, and  he  upon  whose  possession  he  enters  may  maintain  replevin 
for  hay  cut  by  the  trespasser,  Atherton  r.  Fowler,  C  Otto,  513,  24  L. 
Ed.  732. 

Grain  sown  and  harvested  by  one  in  the  actual  adverse  possession 
of  the  lands,  though  without  color  of  title,  cannot  be  recovered  from 
him  in  replevin,  by  the  adverse  claimant.  Replevin  cannot  be  made 
the  means  of  litigating  the  title  to  lands,  Martin  r.  Thompson,  62 
Calif.  618;  even  though  the  administrator's  conveyance  under  which 
the  defendant  claims,  has  since  been  annulled  and  set  aside,  Emerson 
V.  V.'hittaker,  83  Calif.  147,  23  Pac.  285.  So  of  oil  extracted  from  lands 
of  which  the  party  is  in  adverse  possession — e.xcept  as  allowed  by 
statute,  Giffin  v.  Southwest  Pipe  Lines,  172  Pa.  St.  580,  33  Atl.  578; 
so  of  timber.  Street  v.  Nelson,  80  Ala.  230.  The  bare  possession  of 
land  under  claim  of  title  is  sufficient  to  entitle  the  possessor  or  his 
landlord  to  maintain  replevin  for  logs  cut  by  one  who  enters  forcibly 
upon  such  possession,  though  asserting  title,  Loveman  r.  Clark, 
Tenn.  85  S.  W.  258.  One  in  actual  possession  of  land,  whether  as  a 
tenant,  licensee  or  mere  trespasser,  cannot  be  dispossessed  of  the 
crop  which  he  has  planted,  matured  and  severed.  McAllister  r.  Lawler, 
32  Mo.  Ap.  91.  The  owner  of  the  free-hold  cannot  recover  things 
severed  therefrom,  if  at  the  time  of  the  severance  another  was  in 
the  adverse  possession,  Cooper  v.  Watson,  73  Ala.  252;  Harrison  r. 
HofT,  102  N.  C.  126,  9  S.  E.  638.  Settler  upon  the  public  domain,  having 
merely  the  right  of  possession,  is  limited  to  such  remedies  as  the  local 
statutes  afford;  replevin  does  not  lie  l)y  one  claimant  against  another 
for  logs  cut  upon  land  in  dispute,  if  the  remedy  is  not  expressly 
allowed  by  statute;  even  though  other  remedies  standing  upon  the 
same  reason  are  given,  Adkinson  v.  Hard  wick,  12  Colo.  581.  21  Pac. 
907.  Plaintiff  was  a  tenant  of  A,  and  sub-let  a  |)ortion  of  the  lands 
to  B,  upon  shares;  B,  at  the  Instance  of  the  plaintiff,  undertook  to 
secure  a  renewal  of  the  plaintiff's  lease,  but  in  violation  of  his  duly 
took  a  new  lease  from  A  to  himself;  it  was  held  that  noiwUhstand- 
Ing  this,  he  remained  the  tenant  of  the  plaintiff,  and  thi'  plaintiff  was 
permitted  to  recover  his  share  of  the  crops  in  replevin,  Zelsler  t). 
BIngman.  9  Kans.  App,  417,  60  I'ac.  657.  Th«'  reason  why  reph'vln  Is 
not  allowed  for  the  product  of  lands  in  adverse  posscsHlon  is  that  the 
of.cupant  should  not  be  harassed  In  separate  acdons  for  each  btishel 
of  wheat  raised,  or  each  stick  of  fln-  wood  severed,  when  tin-  matter 
may  be  settled  once  for  all  by  a  single  action  to  recover  the  lands; 
Philips  V.  Oastrell.  61  Miss.  413. 

The  doctrine  Is  restricted   within  the  nanuwesl   limits,  and   the  a. 


76  THE    LAW    OF    REPLEVIN. 

tion  is  denied  only  as  against  an  actual  occupant.  Swamp  lands 
to  which  defendant  claimed  title,  were  visited  by  him  with  loggers  and 
rafters  yearly  for  more  than  ten  years,  but  merely  for  the  purpose 
of  cutting  the  timber,  though  while  there  they  cultivated  small  gardens. 
It  was  held  that  the  owner  of  the  land  might  recover  the  timber 
cut,  notwithstanding  the  adverse  claim.  Philips  v.  Gastrell,  supra. 
and  see  Brewer  v.  Fleming,  51  Pa.  St.  102.  Replevin  cannot  be  made 
the  means  of  litigating  and  determining  the  title  of  lands,  but  the 
title  may  come  in  question  incidentally,  and  conveyances  may  be 
examined  to  ascertain  the  question  of  possession  and  in  whom  in 
fact  was  the  possession,  and  by  consequence  the  title  to  the  things 
severed,  Loveman  v.  Clark,  supra. 

NoTK  IV.  Defences  to  the  action. — Property  in  Defendant. — One  in 
possession  of  a  slave,  not  for  himself,  but  for  the  estate  of  an  ancestor, 
cannot  set  up  a  claim  in  his  own  right;  nor  can  any  one  who  succeeds 
to  his  possession.  Miller  v.  .Jones,  26  Ala.  247.  Receiptor  who  has  given 
to  an  officer  a  recipt  for  goods  taken  on  execution  against  a  third  per- 
son, cannot  assert  title  in  an  action  upon  his  receipt,  Bursley  v.  Hamil- 
ton, 15  Pick.  40.  But  he  may  after  delivery  of  the  goods,  maintain  re- 
plevin. Id.  Defendant  need  only  show  his  actual  possession  to  entitle' 
himself  to  a  judgment  for  the  value  as  against  the  plaintiff  who  shows 
no  right,  Steere  v.  Vanderberg,  90  Mich.  187,  51  N.  W.  205. 

Property  in  Another. — Property  and  the  right  of  possession  in  an- 
other is  a  good  defense.  Fuller  v.  Brownell,  48  Neb.  145,  67  N.  W.  6; 
Dobson  V.  Owens,  5  Wyo.  325,  40  Pac.  442;  Gottschalk  v.  Klinger,  33 
Mo.  Ap.  410;  Central  Co.  v.  Mears,  89  Ap.  Div.  452,  85  N.  Y.  Sup.  795. 
Part  ownership  in  another  is  a  good  plea  in  bar,  Reinheimer  v.  Hem- 
ingway, 35  Pa.  St.  432; — but  not  if  the  right  of  possession  is  in  the 
plaintiff,  Lillie  v.  Shaw,  22  Wash.  234,  60  Pac.  406.  But  where  the  de- 
fendant has  receipted  for  the  goods  to  the  plaintiff,  and  stipulated  to 
account  to  him  for  them,  he  cannot  plead  this  plea,  Reed  v.  Reed,  13  la. 
5.  Where  defendant  holds  under  plaintiff  he  will  not  be  heard  to  set 
up  a  mortgage  executed  by  him  to  a  third  person,  even  though  such 
mortgagee  took  without  notice  of  plaintiff's  right,  and  defendant  at 
the  date  of  the  mortgage  was  in  possession  of  the  chattels.  Puffer  Co. 
V.  May,  78  Md.  74,  26  Atl.  1020.  Nor  can  mortgageor  set  up  a  title  in  a 
stranger  by  his  own  prior  mortgage,  Gottschalk  v.  Klinger,  33  Mo.  Ap. 
410.  And  bailee  cannot  as  against  his  bailor,  plead  title  in  another  as 
long  as  he  retains  the  goods,  Hentz  v.  The  Idaho,  3  Otto  (93  U.  S.), 
575,  23  L.  Ed.  978.  Defendant  will  not  be  heard  to  say  that  he  holds 
for  another  who  has  no  right  of  possession,  Read  v.  Brayton,  143  N.  Y. 
340,  38  N.  E.  261.  Property  in  a  stranger  is  no  defense  where  defend- 
ant is  a  mere  trespasser.  Van  Baalin  v.  Dean,  27  Mich.  104.  Nor  unless 
defendant  connect  himself  with  such  title,  Stevens  v.  Gordon,  87  Me. 
564,  33  Atl.  27;  Miller  v.  .Tones,  26  Ala.  247;  so  in  detinue,  Gafford  v. 
Stearns,  51  Ala.  434.  Where  the  plaintiff  grounds  his  action  not  upon 
a  prior  possession,  but  upon  title,  defendant,  if  not  estopped,  may  show 


GENERAL    PRIXCIPLES.  77 

title  in  a  stranger  without  connecting  himself  with  it,  Mcintosh  v. 
Parker.  82  Ala.  238,  3  So.  19.  He  may  show  that  he  holds  the  goods 
as  trustee  for  his  wife,  without  power  to  mortgage,  even  though  the 
plaintiff  relies  upon  a  mortgage  executed  by  defendant,  which  recites 
that  he  is  the  absolute  owner;  the  mortgage  constitutes  no  estoppel. 
Id.  Defendant  will  not  be  heard  to  assert  a  mere  lien  of  a  third  per- 
son, where  the  plaintiff,  as  against  the  defendant,  is  entitled  to  posses- 
sion, McGill  I'.  Howard,  61  Miss.  411.  Where  in  replevin  for  staves  cut 
from  lands  claimed  by  each  party  the  state  also  interpleaded,  claiming 
the  staves  as  cut  from  public  lands,  and  plaintiff  and  defendant  elected 
to  try  the  issue  as  between  themselves,  in  advance  of  the  determination 
of  the  claim  of  the  state;  held,  that  neither  party  could  invoke  the  title 
of  the  state  to  defeat  the  right  of  the  other,  Winchester  v.  Bryant,  G5 
Ark.  116.  44  S.  W.  1124. 

Defendant,  showing  no  title,  cannot  question  the  regularity  of  a  sale 
by  the  state,  the  original  owner,  to  the  plaintiff,  Raber  v.  Hyde.  Mich., 
(1904).  101  N.  W.  61. 

Lien. — If  one  of  a  firm  is  made  sole  defendant,  he  may  assert  a  lien 
on  the  goods  in  favor  of  the  partnershij),  Holderraan  v.  Manier.  104 
Ind.  118.  3  X.  E.  811.  Expiration  of  Plaintiffs  Right.— That  plaintiff's 
property  in  the  goods  has  passed  to  another  by  foreclosure  of  a  lien,  is 
a  good  defense,  Neeb  v.  McMillan.  98  la.  718.  68  N.  W.  438.  Or  that 
after  the  property  was  taken  plaintiff  sold  to  defendant,  Giroiix  v. 
Wheeler.  163  Mass.  48.  39  N.  E.  470.  Merely  applying  for  and  obtaining 
leave  to  interplead  in  an  attachment  and  assert  claim  to  the  goods  at- 
tached, does  not  preclude  the  party  from  his  action  of  replevin.  Wangler 
V.  Franklin,  70  Mo.  G.^9.  Under  a  statute  that  "  no  action  shall  abate  by 
*  *  *.  the  transfer  of  any  interest  therein,"  an  action  of  replevin 
pending  in  the  circuit  court  by  appeal  from  the  lounty  court,  is  not 
affected  by  the  taking  of  the  goods  out  of  possession  of  plaintiff,  by  the 
levy  of  an  execution  thereon  by  an  officer,  or  by  the  recovery  of  a  judg- 
ment by  the  plaintiff  against  the  officer  for  such  taking.  The  api)eal 
may  nevertheless  proceed.  Culver  v.  Randle,  45  Ore.  491,  78  Pac.  394. 

Infancy. — Infancy  is  no  defense  to  an  action  of  trover.  Fish  v.  Ferris. 
5  Duer,  49.  Vaury. — Plaintiff,  resting  his  claim  upon  a  chattel  mort- 
gage which  is  shown  to  be  usurious,  defendant  recovers  costs,  Uodgcrs 
V.  Graham,  36  Neb.  730.  5."i  N.  W.  243. 

Lankruptiy. — Defendants'  discharge  in  insolvency  Is  no  defonse. 
Wood  X).  McDonald,  66  Calif.  r)16,  6  Pac  4rj2.  Nor  his  bankruptcy  and 
compoKltion  with  creditors,  where  plaintiff  was  not  a  croditor.  Miller 
V.  Warden.  Ill  Pa.  St.  300,  2  Atl.  90;  Robinson  v.  Soule,  fiG  MIsh.  G49. 
Bailee  wrongfully  converts  negotiable  securities,  which  were  oblulned 
without  deceit  or  trick;  his  di8<  harge  In  bankruptcy  was  held  a  de- 
fenBP,  Hcnriequinn  v.  Clews,  77  N.  Y.  427.  Defen<lanl  In  replevin  denied 
all  liability.  Held,  that  his  liability  In  an  action  of  replevin  waH  ho 
contiiigciii  that  ijialntlfT  was  not  boiiml  to  prove  agahiHl  hlH  cKtHte  In 
bankruptcy,  and  his  right  woh  not  oblllLTuted  by  defendanl'u  dlhcliurge. 


78  THE    LAW    OF    REPLEVIN. 

Clemmons  i'.  Brinn.  3G  Misc.  157,  72  N.  Y.  Sup.  1066.  Seizure  of  goods 
under  a  writ  of  replevin  is  discharged  by  an  adjudication  in  bankruptcy 
upon  petition  filed  within  four  months,  In  Re  Hymes  Co.,  130  Fed.  977. 
Where  the  sheriff,  after  a  levy,  surrenders  to  a  trustee  in  bankruptcy, 
this  amounts  to  an  abandonment  and  invalidates  the  levy,  the  jurisdic- 
tion of  the  court  issuing  the  writ  is  gone,  Id. 

Unlawful  Combination. — A  statute  that  in  any  action  it  shall  be 
lawful  to  plead  that  plaintiff  is  a  member  or  agent  of  any  unlawful 
combination  in  restraint  of  trade,  is  not  intended  to  deprive  a  person 
of  property  rights,  not  in  any  way  connected  with  the  unlawful  combi- 
nation; a  plea  of  such  statute  affords  no  defense  to  an  action  to  re- 
cover property  to  which  i)iaintiff  has  a  clear  right.  Barton  v.  Mulvane, 
59  Kans.  313,  52  Pac.  883. 

Indemnifying  Bond,  Unconstitutional  Statute. — The  statute  that  "  the 
claimant "  of  any  property  for  the  seizure  or  sale  of  which  an  indemni- 
fying bond  has  been  taken  and  returned,  shall  be  barred  df  an  action 
against  the  officer,  if  the  surety  in  the  bond  was  good  when  it  was 
taken.  Held  unconstitutional,  as  compelling  one  to  surrender  his 
property  without  his  consent,  for  the  private  benefit  of  another,  Foule 
V.  Mann,  53  la.  42,  S.  C.  sub.  nom,  Towle  v.  Mann,  3  N.  W.  814;  and  such 
bond  is  no  defense  to  an  action  for  damages  against  the  officer,  Craig  v. 
Fowler,  59  la.  200,  13  N.'  W.  116.  Equitable  Defenses.  Replevin  is 
strictly  a  legal  action;  equitable  defenses  cannot  be  interposed,  Hen- 
nessey V.  Barnett,  12  Colo.  Ap.  254,  55  Pac.  197.  But  in  Ames  Iron 
Works  V.  Rea,  56  Ark.  450,  19  S.  W.  1063,  defendant  had  purchased  a 
cotton  gin  of  the  plaintiff  to  be  shipped  by  a  day  named,  title  to  remain 
in  the  plaintiff  until  payment;  defendant  paid  one  hundred  and  ten  dol- 
lars and  agreed  to  pay  in  installments  the  further  sum  of  six  hundred 
and  fifty  dollars;  the  gin  was  not  delivered  until  weeks  after  the  day 
agreed  upon,  and  was  found  imperfect;  defendant  at  once  notified 
plaintiff,  and  used  diligence  to  procure  and  supply  the  necessary  parts 
without  success;  he  was  deprived  of  the  use  of  the  gin  and  damaged 
by  the  plaintiff's  default.  Held,  he  might  plead  these  facts  as  an. 
equitable  defense  to  an  action  of  replevin  by  the  plaintilf. 

And  in  Hennessey  v.  Barnett,  supra,  a  similar  defense  was  enter- 
tained. So  where  plaintiiT  claimed  under  a  conditional  sale  for  non- 
payment of  the  purchase  money,  it  was  held  defendant  might  show 
that  the  machine  did  not  correspond  with  the  representations  under 
which  it  was  purchased;  that  its  defects  were  secret,  that  the  machine 
by  reason  of  these  defects  was  worth  very  much  less  than  the  agreed 
price,  and  that  defendant  had  promptly  notified  plaintiff,  McKean  v. 
Matthews  Co.,  74  Miss.  119,  20  So.  869.  So  that  defendant  was  induced 
to  execute  an  agreement  of  purchase  by  fraudulent  misrepresentations 
as  to  its  contents,  Woodbridge  v.  Dewitt,  51  Neb.  98,  70  N.  W.  506. 
An  equitable  defense  may  be  set  up  in  an  answer  or  supplemenial 
answer.  Sparks  v.  Green,  69  S.  C.  198,  48  S.  E.  61.  In  replevin  for 
wood  and  railway  ties  cut  upon  vacant  land,  defendant  was  permitted 


GENERAL    PRINCIPLES.  79 

to  set  up  by  answer  that  plaintiff  was  claiming  the  land  under  an 
invalid  tax  sale,  to  pray  a  cancellation  of  the  tax  deed  and  transfer 
the  cause  to  equity,  Rogers  r.  Kerr,  42  Ark.  100;  but  defendant  was 
required  to  pay  plaintiff  the  amount  of  his  outlays  in  the  matter  of  the 
tax,  Id.  Sureties  in  the  forthcoming  bond  are  not  permitted  to  intei- 
vene  in  the  action  of  bail  trover;  they  must  stand  or  fall  by  the  de- 
fense made  by  their  principal;  they  are  bound  by  any  judgment  against 
him.  Holmes  v.  Langston,  110  Ga.  8G1,  36  S.  E.  251.  The  sureties 
have  no  right  to  tender  to  the  plaintiff  the  property  sued  for,  pending 
fhe  suit;  especially  except  at  the  trial  when  the  plaintiff  had  elected 
to  take  a  verdict  for  damages  in  lieu  of  the  goods,  Id. 

Destruction  or  Loss  of  the  Goods. — Plaintiff  cannot,  when  return  is 
awarded,  shield  himself  on  the  ground  that  the  property  has  been  de- 
stroyed by  accident,  Suppiger  v.  Gruaz,  137  Ills.  216.  27  N.  E.  22. 
Where  the  goods  are  destroyed  in  plaintiff's  possession  and  the  circum- 
stances are  not  shown,  judgment  should  be  for  the  value  without  any 
alternative,  Epperson  r.  Van  Pelt,  9  Baxt.  73.  One  who  assumes  posses- 
sion of  goods  encumbered  by  a  mortgage  duly  recorded,  is  liable  for 
the  value  though  he  acted  in  good  faith,  and  the  goods  are  destroyed 
without  his  fault.  Ross  v.  Menefee,  125  Ind.  432,  25  N.  E.  545.  Where 
defendant  submits  to  a  default  he  will  not  be  allowed  to  prove  upon 
the  inquest  of  damages  his  readiness  to  deliver,  and  the  subsequent  un- 
lawful destruction  of  the  goods  without  his  fault,  Curry  v.  Wilson, 
48  Ala.  638.  The  weight  of  authority  is  against  excusing  the  party  who 
has  wrongfully  possessed  himself  of  the  goods  of  another,  from  return- 
ing the  same  or  paying  the  value,  because  they  have  been  lost  by  the 
act  of  God.  Such  excuse  rests  on  no  sound  principle,  De  Thomas  v. 
Witherby,  61  Calif.  92.  The  destruction  of  the  goods  by  fire  while  in 
possession  of  defendant  on  delivery  bond,  is  no  defense,  Gi'orge  r. 
Hewlett,  70  Miss.  1.  12  So.  855.  In  Duffus  v.  Schwinger,  79  Hun.  541, 
29  N.  Y.  Sup.  930,  it  was  said  that  where  the  statute  fixes  tlie  value 
at  the  date  of  the  trial  as  the  measure  of  the  recovery,  the  destruction 
of  the  goods  after  the  taking  and  before  the  trial  seems  to  afford  no 
exception  to  the  rule.  In  Gillet  v.  Roberts,  57  N.  Y.  28,  it  was  held 
that  one  who  in  good  faith  purchased  logs  from  a  trespasser  would 
not  be  liable  for  their  value  if  they  were  carried  away  by  a  flood  be- 
fore demand  upon  him  by  the  owner. 

DeV.vrry  to  a  Strntifjcr. — The  shfriff  who  makes  a  wrongful  levy 
cannot  relieve  himself  from  liability  to  the  owner  by  delivery  of  the 
goods  to  a  receiver  api)ointod  by  the  court  In  a  suit  in  which  i)laln- 
tlff  1h  not  a  party,  Wise  v.  JefrerlK.  2  C.  C.  A.  432.  51  Kod.  641.  The 
sheriff  who,  having  replevied  the  goods  from  defendant,  Burrendera 
them  to  a  stranger,  is  liable,  Adamson  v.  Sundby,  51  Minn.  460,  53  N. 
W.  761;  and  delivery  to  a  stranger  cannot  bo  allowed  oven  In  mitiga- 
tion of  damages,  Vallop,  etc.,  Co.  v.  MlnneapoliH  Co.,  33  Minn.  4H2.  24 
N.  W.  185.  Defendant  cannot  justify  undiT  on*-  who  liad  no  right; 
and  delivery  of  the  goodH  by  agent  to  his  prinelpnl.  without  notlco  of 
the    owner's    right.    Is    no    defense    to    an    iutlon    for    the    conversion. 


80  THE    LAW    OF    REPLEVIN. 

Miller  v.  Wilson.  98  Ga.  5G7,  25  S.  E.  578.  One  who  takes  goods  in 
pledge,  and  who  in  good  faith  returns  them  to  the  pledgor,  without 
notice  that  he  is  not  the  owner,  and  without  any  intention  to  injure 
or  embarrass  the  owner,  is  not  responsible  in  replevin,  Carpenter  v. 
Shave.   1   Mackey,  417. 

Possession  for  a  Third  Person. — One  in  actual  possession  of  the  goods 
is  liable  in  replevin  though  holding  them  for  another,  Flatner  v. 
Good,  35  Minn.  395,  29  N.  W.  56.  If.  in  a  building  belonging  to  him, 
which  he  controls,  they  are  in  his  possession.  Id. 

Non-Detention.  General  Rule. — One  who  neither  has  the  actual  or 
constructive  control  of  the  goods,  and  has  not  concealed,  removed  or 
disposed  of  them  for  the  purpose  of  avoiding  the  writ,  cannot  be 
made  liable  in  replevin,  Depriest  v.  McKinstry,  38  Neb.  194,  56  N.  W. 
806.  The  matter  is  put  in  issue  by  a  general  denial.  Id.  The  plaintiff 
has  the  burden  of  proof,  Bardwell  v.  Stubbert.  17  Neb.  485,  23  N.  W. 
344.  Plaintiff  must  prove  either  an  unlawful  taking  or  an  unlawful 
detention. 

One  not  in  possession  of  the  goods  cannot  be  sued  in  replevin, 
although  responsible  to  the  plaintiff  therefor,  Myrick  v.  National  Co., 
Miss.  25  So.  155.  The  goods  must  be  in  the  actual  or  constructive 
possession  of  the  defendant  at  the  institution  of  the  action,  McCormick 
Co.  V.  Woulph.  11  S.  D.  252,  76  N.  W.  939;  Penn  v.  Brashear,  65  Mo.  Ap. 
24;  Kales  v.  Francis,  115  Mich.  636,  73  N.  W.  894;  Verein  v.  Wall,  58  N. 
Y.  Supp.  1115;  Myers  v.  Credle,  63  N.  C.  504;  Aber  v.  Bratton,  60  Mich. 
357,  27  N.  W.  564;  Dow  v.  Dempsey,  21  Wash.  86,  57  Pac.  355;  Coffin  v. 
Gephart,  18  la.  257,  e.  g.,  a  father  in  whose  house  the  goods  are  and 
•who  advises  the  son  not  to  surrender  them,  but  who  himself  makes 
no  claim,  and  has  never  assumed  possession  nor  control.  The  Matteawan 
Co.  V.  Bentley,  13  Barb.  641;  Norman  Co.  v.  Ford,  59  Atl.  499;  an 
ofBcer  who  has  returned  goods  levied  upon  by  him  to  the  place  where 
he  took  them;  and  notified  the  claimant,  McHugh  v.  Robinson,  71 
Wis.  565,  37  N.  W.  426;  the  plaintiff  in  execution,  where  the  officer 
assumes  exclusive  possession  of  the  goods,  House  v.  Turner,  106  Mich. 
240,  64  N.  W.  20;  sureties  in  the  official  bond  of  an  officer  who  have 
nothing  to  do  with  a  levy  made  by  him,  Gallick  v.  Bordeaux,  Mont. 
78  Pac.  583,  are  none  of  them  liable  in  replevin:  even  though  one  de- 
fendant has  submitted  to  a  default,  the  truth  of  the  matter  appearing 
"by  the  defense  made  by  the  other,  Feder  v.  Abrahams,  28  Mo.  Ap.  454. 
B.  mortgaged  a  crop  of  wheat  to  the  plaintiff;  upon  harvesting  the 
crop  he  carried  it  to  an  elevator  and  received  tickets,  not  entitling 
him  to  any  wheat  in  particular;  he  delivered  these  tickets  to  the  de- 
fendant, who  afterwards  disposed  of  them,  but  had  no  other  control 
of  either  the  wheat  or  the  tickets.  Held,  not  liable.  Best  v.  Muir,  8 
N.  D.  44,  77  N.  W.  95.  Property  was  replevied  from  a  constable  and 
delivered  to  plaintiff,  the  writ  being  defective,  was  discontinued  with- 
out return  of  the  goods;  the  constable  who  had  levied  an  execution 
upon  them  in  behalf  of  the  defendants  but  was  not  made  a  party, 
consented  to  the  service  of  a  second  writ  without  return  of  the  goods. 


GENERAL    PRINCIPLES.  81 

Held,  he  had  no  such  authority  and  defendants  were  entitled  to  judg- 
ment, Osborne  v.  Banks,  46  Conn.  444.  But  where  goods  were 
taken  by  the  officer,  and  the  original  summons  being  irregular  a 
second  was  issued  and  served  upon  the  defendants,  the  objertion 
that  the  goods  were  not  in  defendant's  possession  when  the  second 
writ  was  issued,  was  held  more  technical  than  meritorious,  American 
Bank  v.  Strong,  Mo.  Ap.  85  S.  W.  G39.  Damages  cannot  be  recovered 
against  the  defendant  for  goods  disposed  of  by  him  before  the  institu- 
tion of  the  action,  Burr  v.  McCallum,  59  Neb.  326.  80  N.  W.  1040.  The 
fact  that  the  value  may  be  recovered  does  not  enlarge  the  remedy, 
Redinger  v.  Jones,  68  Kans.  627,  75  Pac.  997.  A  statute  that  if  the 
officer  shall  return  not  found  as  to  the  goods,  but  defendant  has  been 
summoned,  plaintiff  may  declare  for  the  value  and  damages  for  the 
taking  or  detention  as  if  he  had  thus  commenced  his  action,  does  not 
authorize  replevin  in  every  case  where  trover,  case  or  detinue  is 
the  proper  remedy;  it  only  enables  plaintiff  to  proceed  with  his  action 
if  the  goods  were  really  in  possession  of  defendant  at  the  date  of  the 
affidavit.  Krosmopolski  r.  Paxton,  58  Miss.  581. 

Plaintiff  is  entitled  to  the  benefit  of  the  statute  where  the  failure 
to  seize  the  goods  is  partial  only,  Id.  But  if  defendant  is  detaining  the 
goods  when  the  writ  is  served,  he  is  liable,  though  they  were  not  in 
his  possession  at  the  time  of  its  issuance,  Howard  r.  Bartlett.  70  Vt. 
314,  40  Atl.  825.  Plaintiff  cannot  maintain  replevin  upon  mere  threat 
of  defendant  to  remove  the  goods.  Johnson  t'.  Prussing.  4  Ills.  Ap.  575. 

Pleading  property  in  defendant  waives  the  plea  of  non  detinet,  Mc- 
Ginley  v.  Wirthele,  Neb.,  101  N.  W.  244.  But  it  seems  otherwise  where 
the  defendant  is  permitted  to  plead  contradictory  defenses.  Where  an 
officer  levying,  refuses  the  claim  made  by  the  plaintiff,  and  the  evi- 
dences of  title  which  he  attempts  to  exhibit,  he  will  not  be  heard  to 
assert  that  plaintiffs  goods  were  unlawfully  confused  with  those  of 
the  execution  debtor,  and  were  not  identified  or  pointed  out  to  him. 
Greenberg  v.  Stevens,  212  111.  606.  72  N.  E.  722. 

Xon-Deteiition,  in  whovi  is  Possession. — An  attorney,  having  the  keys 
of  a  certain  shop,  merely  to  deliver  them  to  the  owner  of  the  premises 
upon  certain  conditions,  and  neither  having  nor  asserting  control  of 
the  machinery  in  the  shop,  is  not  liable,  even  though  on  demand  he 
refuses  to  deliver  it.  disclaiming  authority.  Barnes  r.  Gardner,  60 
Mich.  133,  26  N.  W.  858.  Tenant  of  rented  apartments,  not  the  land- 
lord, is  in  possession  of  the  goods  in  such  apartments.  Yoimg  r.  Evans. 
118  la.  144.  92  N.  W.  111.  A  tenant  ociupying  a  house  by  hlni  wrong- 
fully attached  to  the  land  of  a  third  person,  is  not  In  poKseHsion. thereof 
In  Huch  sense  that  replevin  will  lie  against  him.  RIchardH  r.  Morey. 
133  Calif.  437,  65  Pac.  886.  A  son  residing  with  his  mother,  and  UHlng 
her  horses  In  her  affairs.  Is  not  In  posBesHlon  thereof;  replevin,  there- 
fore, will  not  lie  against  him.  Hurt  r.  Burt.  41  Mich.  82.  1  N.  W.  936. 
S.  P.,  Saenz  r.  Mumme,  Tex.  Civ.  Ap.  85  S,  W.  59.  NolwIthHlandlng 
the  Married  Woman'H  Acts,  the  husband  Ih  llalile  for  ii  wlfp'H  torlH, 
and  If  she  wrongfully  detalnn  goodb  of  another  ujion  hlH  prenilHen. 
C 


82  THE    LAW    OF    REPLEVIN. 

replevin  lies  against  him  though  his  conduct  is  merely  passive,  Choen 
V.  Porter.  GG  Ind.  194.  And  the  husband's  possession  of  slaves,  the 
separate  property  of  the  wife,  is  in  law,  the  wife's  possession.  McNeill 
V.  Arnold.  17  Arli.  154. 

Vendor  in  a  conditional  sale  of  printing  presses,  default  having 
been  made,  entered  the  place  where  they  were,  and  tagged  them  with 
his  own  name;  the  defendant  claiming  under  a  mortgage  from  the 
vendee  removed  the  tags  and  sold  the  presses  under  the  mortgage. 
Held  that  the  tagging  constituted  possession,  and  the  subsequent 
conduct  of  defendant  an  unlawful  interference  and  detention,  and  that 
plaintiff  was  entitled  to  replevin  without  demand,  Cottrell  v.  Carter, 
173  Mass.  155,  53  N.  E.     375. 

Non-Detention,  Ooods  in  Plaintiff's  Possession. — Plaintiff  in  posses- 
sion at  the  issuance  of  the  writ,  cannot  maintain  his  suit.  Hickey  v. 
Hinsdale,  12  Mich.  99;  Degering  v.  Flick,  14  Neb.  448,  16  N.  W.  824; 
Bruce  v.  Horn,  11  Colo.  Ap.  316,  52  Pac.  1036;  Austin  v.  Wauful,  59 
Hun,  620,  13  N.  Y.  Sup.  184;  Graham  v.  Myers,  74  Ala.  432;— even 
though  plaintiff  is  in  possession  as  receiptor  to  the  defendant,  an  officer, 
who  has  levied  upon  them,  Austin  v.  Wauful,  supra.  And  even  though 
the  officer  has  actually  advertised  the  goods  for  sale  under  his  writ, 
and  is  proposing  to  make  a  sale,  Morrison  v.  Lumbard,  48  Mich.  548^ 
12  N.  W.  696;  but  see  Williams  v.  Morgan,  50  Wis.  541,  7  N.  W.  548. 
And  if  the  complaint  shows  possession  in  the  plaintiff,  it  is  bad  on 
demurrer.  Carman  v.  Ross,  64  Calif.  249,  29  Pac.  510.  An  officer  having 
levied  upon  goods  under  an  attachment,  the  plaintiff  brought  replevin; 
this  action  was  discontinued  but  without  any  judgment  for  return; 
plaintiff  then  returned  the  goods  to  the  place  from  which  they  were 
taken,  and  notified  the  defendant  that  they  were  subject  to  his  order; 
defendant  refused  to  receive  or  intermeddle  with  them;  held,  they 
still  remained  in  possession  of  the  plaintiff  in  replevin  and  that  he 
could  not  maintain  a  second  replevin,  Calnan  v.  Stern,  153  Mass.  413, 
26  N.  E.  994.  The  widow  of  a  decedent  cannot  maintain  replevin 
against  the  administrator  for  goods  of  which  she  is  in  the  undis- 
turbed possession  and  the  administrator  has  merely  caused  to  be 
appraised  and  advertised  as  property  of  the  deceased.  Reed  v.  Wilt- 
bank,  2  Pen.  Del.  243,  45  Atl.  400. 

Estoppel  to  plead  Non-Detention. — Defendant  cannot  at  the  trial 
deny  possession  when  he  admits  it  upon  the  demand,  Harris  v.  Hay- 
field,  5  Wash.  230,  31  Pac.  601;  nor  can  one  who  has  given  a  delivery 
bond;  he  thereby  conclusively  admits  possession,  Jordan  v.  Johnson. 
1  Kans.  Ap.  656,  42  Pac.  415;  Nye  v.  Weiss,  7  Kans.  Ap.  627,  53  Pac. 
152;  Griswold  v.  Sundback,  4  S.  D.  441,  57  N.  W.  339;  Martin  v.  Gil- 
bert, 119  N.  Y.  298,  23  N.  E.  813,  24  N.  E.  460;  Diossy  v.  Morgan,  74 
N.  Y.  11;  McMillan  v.  Dana,  18  Calif.  339;  Lucas  v.  Beebe,  88  Ills. 
427;  Anthony  v.  Bartholomew,  69  Mo.  186;  Griffith  v.  Richmond,  126 
N.  C.  377,  35  S.  E.  620;  Benesch  v.  Waggner,  12  Colo.  534,  21  Pac.  706. 
But  where  the  writ  was  for  "  329.760  feet  of  white  pine  logs,  more 
or  less,  marked  E  on  the  end,"  and  it  appeared  that  the  logs  in  con- 


GENERAL    PRINCIPLES.  83 

troversy  were  contained  in  a  boom  maintained  for  the  convenience 
of  all  persons  driving  logs  upon  the  stream,  mixed  with  innumerable 
others,  submerged  and  imbedded  in  the  mud  and  heaped  together, 
filling  the  stream  for  a  mile  or  more,  that  no  human  power  could  reach 
them  until  flooded  out,  that  an  officer  was  appointed  by  law  to  ascertain, 
measure  and  scale  the  logs;  held,  that  in  view  of  the  vague  character 
of  the  writ  and  the  impossibility  of  determining  the  number  of  logs 
in  the  boom,  it  could  not  be  said  that  the  sheriff  by  return  of  "  re- 
plevied," or  the  defendant  by  giving  bond  and  claiming  the  logs,  could 
have  intended  any  certain  number  of  logs  or  number  of  feet,  but  that 
the  return  and  the  bond  must  be  held  to  cover  and  secure  only  what 
in  due  course  of  the  operation  of  the  boom  should  be  found  in  defend- 
ant's possession,  Susquehannah  Co.  ik  Finney,  58  Pa.  St.  200.  Held 
further,  that  evidence  as  to  the  number  of  logs  as  afterwards  returned, 
and  that  a  great  part  of  what  the  plaintiff  had  claimed  he  had  actually 
obtained,  and  that  others  had  been  rafted  out  and  delivered  to  another 
claimant  previous  to  the  service  of  the  writ,  should  have  been  admitted. 
Id.  Defendant  notified  the  purchaser  not  to  remove  the  saw-mill  in 
question,  and  that  if  he  came  upon  the  lands  where  it  was  he  would 
be  treated  as  a  trespasser.  Held,  he  was  not  at  liberty  to  defend  on 
the  ground  of  non-detention.  Savage  v.  Russell,  84  Ala.  103,  4  So.  235. 
So  the  officer  who,  on  demand,  refuses,  generally,  without  assigning 
any  reason,  or  excuse,  cannot  on  replevin  brought,  assert  that  before 
the  demand  he  has  delivered  the  goods  to  another,  Udell  v.  Slocum, 
56  Ills.  Ap.  217.  Mortgageor  cannot  deny  possession  of  the  mortgaged 
goods  on  replevin  brought  by  the  mortgagee,  Griffith  v.  Richmond. 
supra.  Nor  can  an  officer  who  justifies  under  his  levy,  even  though  the 
goods  were  left  upon  plaintiff's  premises  and  plaintiff  gave  a  receipt 
for  them,  Williams  v.  Morgan,  50  Wis.  541,  7  N.  W.  548,  but  see  Austin 
V.  Wauful,  59  Hun,  620,  13  N.  Y.  Sup.  184;  Morrison  v.  Lumbard,  48 
Mich.  548,  12  N.  W.  696,  and  see  post,  Constructive  Possession.  Re- 
plevin lies  against  an  assignee  for  creditors,  who  has  left  the  goods 
with  the  assignor,  but  who,  on  demand  made,  does  not  clearly  disclose 
that  he  does  not  claim  them  under  the  assignment,  Coomer  v.  Gale  Co.. 
40  Mich.  691. 

The  defense  of  non-detention  may  be  waived.  Plea  of  a  purclmso  of 
plaintiff's  husband,  and  that  plaintiff  is  estopped  to  deny  his  autliorily. 
is  such  waiver.     McGinley  r.  Wcrlhelo,  Neb.   Ktl   N.  W.  241. 

Non-Detention,  Possession  at  Demand. — Actual  ijossesslon  of  defend- 
ant at  the  emanation  of  the  writ  Is  not  essential  If  thf  goods  were 
In  his  possession  when  he  refused  the  demand,  Harkey  v.  Tlllnum,  40 
Ark.  551 ;  and  he  cannot  evade  the  writ  by  delivery  to  another  ufler 
such  demand,  Gassner  v.  Marquardt,  76  Wis.  579.  45  N.  W.  C74. 

Non-Detention,  Presumption. —  In  MaKKaihuKetts  the  writ  may  Ihhup 
provisionally,  and  h*:  dfllvered  to  the  officer  wllh  InHtructlons  not 
to  serve  It  until  after  a  <ertaiii  time;  and  where  tin-  writ  Iton-  date 
prior  to  the  accrual  of  the  n«lloii  and  th«'re  was  no  proof  uh  to  when 
the    writ    was   dfllvered    to    thi-   om<er.    nor    with    what    InstrurtlonH.    It 


84  THE    LAW    OF    REPLEVIN. 

was  presumed  that  it  was  not  delivered  until  the  cause  of  action 
accrued,  i.  e.,  until  the  detention  began,  Federhen  v.  Smith,  3  Allen, 
119. 

Non-Dcte7ition,  Constructive  Possession. — In  .Jordan  v.  Flynn,  17 
Neb.  518,  23  N.  W.  519,  it  was  said  that  constructive  possession  of  a 
horse  by  defendant  while  in  plaintiff's  stable,  was  conceivable.  The 
defendant,  an  officer,  endorsed  upon  his  writ  a  levy  on  the  goods  of 
the  plaintiff  and  put  another  officer  in  charge  of  them  but  did  not 
remove  them.  Held,  notwithstanding,  there  was  such  a  detention  as 
would  suffice  to  maintain  replevin,  O'Connor  v.  Gidday,  63  Mich.  (i30, 
30  N.  W.  313;  S.  P.,  Hursh  v.  Starr,  6  Kans.  Ap.  8,  49  Pac.  618;  Hadley 
V.  Hadley.  82  Ind.  95.  So,  if  the  officer  take  a  delivery  bond  even 
though  the  plaintiff  himself  gives  the  bond,  Louthain  v.  Fitzer,  78 
Ind.  449;  but  see  Hove  v.  McHenry,  60  la.  227,  14  N.  \V.  301.  So,  if 
the  officer  merely  claims  to  exercise  control  by  his  process,  or  makes 
an  inventory,  or  threatens  to  remove  the  goods  unless  receipt  is  given, 
Hadley  v.  Hadley,  supra. 

Notwithstanding  the  Married  Woman's  Acts,  the  husband  is  liable 
for  the  wife's  torts,  and  if  she  detains  the  goods  of  a  lother  upon  his 
premises,  replevin  lies  against  him  though  his  conduct  is  merely  pas- 
sive, Choen  v.  Porter,  66  Ind.  194. 

An  officer  having  levied  upon  the  goods  of  the  plaintiff  under  a 
writ  against  another,  denies  that  he  has  taken  any  goods  of  the  plain- 
tiff and  declares  that  plaintiff  can  take  them  if  they  belong  to  him. 
The  officer's  declaration  imports  that  the  attachment  is  not  released, 
and  that  plaintiff  will  take  the  goods  at  his  peril,  Wheeler  v.  Eaton, 
67  N.  H.  368,  39  Atl.  901.  So,  where  the  officer  levied  upon  the  goods, 
placed  a  custodian  in  charge  and  forbade  the  plaintiff  to  remove  them, 
Aman  v.  Mottweiler,  15  Ind.  Ap.  405,  44  N.  E.  63.  And  so  where  the 
officer  endorsed  upon  his  writ  a  levy  upon  a  lot  of  lumber  and  took 
such  possession  as  is  customary  with  bulky  articles  and  refused  to 
surrender  on  demand.  Hatch  v.  Fowler,  28  Mich.  205.  And  replevin 
■will  lie  against  the  sheriff  whose  deputy  is  in  possession  under  a  levy, 
Crum  V.  Elliston,  33  Mo.  Ap.  591.  But  an  officer  who  merely  read 
the  attachment  to  the  defendant  named  therein  and  told  him  he 
attached  certain  goods,  but  failed  entirely  to  remove  them  or  inter- 
fere with  the  possession  and  claimed  no  control  of  them,  was  held 
not  liable  in  replevin,  Libby  v.  Murray,  51  Wis.  371,  8  N.  W.  238, 
Standard  Oil  Co.  v.  Bretts,  98  Ind.  231.  Where  an  action  in  which 
the  goods  had  been  seized  and  delivered  to  the  plaintiff,  was  dismissed, 
it  was  held  that  the  goods  were  immediately  in  the  constructive  posses- 
sion of  the  defendant  and  that  plaintiff  might  sue  out  a  second  writ 
of  replevin  before  actual  manual  delivery  of  the  goods  to  defendant, 
Teeple  v.  Dickey,  94  Ind.  124.  If  defendant  wrongfully  place  the  goods 
of  the  plaintiff  in  possession  of  another,  he  is  liable  for  the  value, 
Murray  v.  Norwood,  77  Wis.  405,  46  N.  W.  499.  But  goods  taken  in 
execution  by  the  sheriff  and  placed  in  the  hands  of  a  keeper,  cannot 
be  replevied  of  the  plaintiff  in  execution.  House  v.  Turner,  106  Mich. 


GENERAL    PRINCIPLES.  85 

240,  64  N.  W.  20.  Replevin  lies  against  one  who  has  delivered  the 
thing  demanded  to  another  "'  subject  to  his  order,"  Bradley  v.  Gamelle, 
7  Minn.  331. 

yon-Detention.  L'nJaicful  Taking. — Replevin  lies  not  against  one  who 
unlawfully  took  the  goods  unless  he  is  detaining  them  at  the  commence- 
ment of  the  action,  Willis  v.  DeWitt,  3  S.  D.  282,  52  N.  W.  1090,  con- 
tra. Pranke  r.  Herman.  76  Wis.  428.  45  N.  W.  312;  McBrien  v.  Morri- 
son, 55  Mich.  351,  21  N.  W.  368; — but  here  the  statute  provided 
that  "  whenever  any  goods  shall  have  been  unlawfully  taken  .  .  . 
an  action  of  replevin  may  be  brought,"  etc.  Where  goods  are  unlaw- 
fully taken  by  A.  without  the  knowledge  or  concurrence  of  B  and 
are  afterwards  found  in  ix>ssession  of  A.  and  B..  B.  cannot  be  made 
a  participant  in  the  original  tortious  taking,  and  charged  as  a  tres- 
passer by  relation,  upon  mere  evidence  that  he  received  possession, 
knowing  of  the  trespass.  Harper  v.  Baker,  3  T.  B.  Monr.  421;  other- 
wise, if  trespass  was  committed  for  his  use,  and  he  assented  to  it 
after  its  commission.  Id.  Plaintiff  shipped  lumber  to  A,  who  declined 
to  receive  it,  A.  afterwards  made  an  assignment  for  creditors;  the 
assignee  after  demand  made  by  the  plaintiff,  sold  the  lumber.  Held 
he  was  liable  in  replevin  in  the  cepit.  Stark  v.  Paine.  85  Wis.  633.  55 
N.  W.  185. 

'Son-Detention,  Transfer  "before  Suit. — Replevin  will  not  lie  against 
one  who  before  the  institution  of  the  action  has  sold  and  finally  parted 
with  the  goods.  Davis  v.  Van  de  Mark.  45  Kans.  130.  25  Pac.  589; 
]\iurray  v.  Lease.  86  N.  Y.  Sup.  581;  McCormick  v.  McCormick,  40 
Miss.  760;  Brockway  r.  Burnap,  12  Barb.  347;  Glass  v.  Basin  Bay  Co.. 
31  Mont.  21.  77  Pac.  302;  Hodges  v.  Nail,  66  Ark.  135.  49  S.  W.  352; 
Robb  v.  Dolrenski,  14  Okl.  563,  78  Pac.  101.  As  where  the  treasurer 
of  a  municipality  sold  them  at  public  outcry.  Hall  v.  Kalamazoo,  131 
Mich.  404,  91  N.  W.  615;  or  the  sheriff  has  sold  goods  under  his  writ 
and  delivered  them  to  the  purchaser,  Moses  v.  Morris,  20  Kans.  208; 
or  a  pledgee  has  sold  and  parted  with  the  goods  before  demand.  Gildas 
V.  Crosby,  61  Mich.  413,  28  N.  W.  153;  or  the  officer  after  a  wrongful 
levy  has  delivered  the  goods  to  a  receiver.  Riciotto  v.  Clement.  94  Calif. 
105,  29  Pac.  414;  Dow  v.  Dempsey,  21  Wash.  86.  57  Pac.  355.  Goods 
obtained  upon  credit  by  fraudulent  representations  of  the  defendant 
are  taken  from  him  upon  legal  process  without  his  procurcnionl;  re- 
plevin will  not  He  upon  a  subsequent  demand  and  refusal.  Sinnolt  v. 
Feiock,  165  N.  Y.  444.  59  N.  E.  265.  But  in  Riciotto  v.  Clement,  supra. 
it  was  held  that  the  plaintiff  might  amend  and  claim  daniages  for 
the  wrongftil  taking  or  conversion.  Defendant  held  the  goods  as 
trustee  for  creditors,  receiving  possession  January  31.  and  pro(e«'d«Ml 
selling  them  until  all  were  disposed  of;  jjIalntlfTs  demanded  them 
p-ebruary  10th;  on  the  28th  of  pvbruary  all  were  dlHpoKcd  of,  but  nt 
what  date  the  last  were  sold  was  not  shown,  nor  whi-llier  It  wan  be- 
fore or  after  the  institution  of  the  huU.  Held,  plaint IfT's  action  could 
not  be  maintained.  West  v.  Graff.  23  Ind    Ap.  410.  55  N.  K.  506. 

Non-Dctcntion,    Wronaful  or  Cullnaivc   7'raHJi^T.— Dc«fcn«lunt   cannot 


86  THE    LAW    OF    REPLEVIN. 

set  up  a  sale  made  by  him  before  the  issuance  of  the  writ,  merely  to 
defeat  the  action,  Helman  v.  Withers,  3  Ind.  Ap.  532,  30  N.  E.  5; 
Gassner  v.  Marquardt,  76  Wis.  579,  45  N.  W.  674.  Defendant  cannot 
protect  himself  by  showing  a  simulated  or  constructive  transfer, 
Hainer  v.  Lee,  12  Neb.  452,  11  N.  W.  888;  or  a  transfer  "subject  to 
his  order,"  Bradley  v.  Gamelle,  7  Minn.  331;  or  a  wronpful  transfer, 
Nichols  1'.  Michael,  23  N.  Y.  264.  Alternative  judgment  for  the  chattel 
or  its  value,  may  be  had  in  such  case,  Holliday  v.  Poston,  60  S.  C.  103, 
38  S.  E.  449.  But  in  Alabama  it  was  held  that  detinue  but  not  re- 
plevin may  be  maintained,  Lightfoot  v.  Jordan,  63  Ala.  224.  In  Cali- 
fornia it  was  held  that  the  plaintiff  might  go  for  the  value,  Richards  v. 
Moray,  133  Calif.  437,  65  Pac.  886. 


WHEN    AND    FOR    WHAT    IT    LIES. 


87 


CHAPTER  III.  . 


WHEN  AND  FOR  WHAT  IT  LIES. 


Replevin  lies  only  for  chattels  . 

Illustrations  of  the  rule     . 

Chattels  severed  from  realty  . 

Buildings  prima  facie  real  es- 
tate   

Chattels  may  become  part  of  the 
realty 

W^hat  is  or  is  not  real  estate 

How  far  the  question  as  to  what 
is  or  is  not  real  estate  may  be 
litigated  in  replevin 

The  same 

The  same 

The  same.     Trade  fixtures 

Buildings,  while  fixed  to  land, 
are  part  of  the  realty 

ArticU'S  severed  from  the  realty 

The  same 

The  same 

The  same 

Severance  from  realty  does  not 
change  title      .... 

Growing  crops    .... 

Actual  severance  not  necessary 
to  give  proi>erty  the  cliaracter 
of  i>er8onalty    .... 


Section. 
58 
59 
60 


64 
65 
66 
67 

68 
69 
70 
71 


73 

74 


Section. 
.     7G 


The  same     ..... 
Chattels  fixed  to  the  land  of  an- 
other without  his  consent       .     77 
Same  entry  under  adverse  claim     78 
Title  to  real  estate,  when  evi- 
dence in  replevin     .         .         .79 

The  same 80 

Holder  of  colorable  title  cannot 

recover  cliattels  severed  .  81 
Defendant  holding  color  of  title  83 
Action  cannot  be  used  to  litigate 

title  to  land      ....     83 
Chattels  severed  through  mis- 
take   84 

Chattels  severed  by  a  trespasser    85 

The  same 86 

The  siime 87 

Severed  by  one  claiming  to  own 

the  land" 88 

Summary  of  the  rule  .     89 

How  far  a  mortgage  on  real  es- 
tate pa.sses  litli' to  chatlcls. sev- 
ered therefrom  .     '.•"> 

The  same 91 

The  same 9l' 

The  sanii' 93 


§  ii8.  Replevin  lies  only  for  chattels.  Ki-plovin  lies  only 
for  chiitt^'Is  i»crs()ii:il,  ;iinl  iiol  f«»r  real  rstutc,  or  anytliiiiKiittaclu'd 
to  or  forming  part  of  the  realty.'  The  title  to  land  cannot  In* 
tried    in   tlii.s  action,  tlirnifrh,  as  w  ill    be   shown   lieicafter,   where 

'Roberts  v.  The  Uuuphln  IJank.  19  Pa.  St.  7Ci;  RIckettH  v.  Dorrell.  55 
Ind.  470;  Vausae  v.  RuHHell,  2  MrCord,  (8.  ('.)  329;  Katoii  r.  8outhl)y. 
Wllles,  131;   Bower  v.  Tallman.  5  WaltH  A  Serg.  &5C. 


88  THE    LAW    OF    REPLEVIN. 

tlio  title  to  I'liattels  depends  on  the  ownei'ship  of  tlie  soil  from 
whieli  they  may  hav(;  been  severed,  the  title  of  the  land  can  l)e 
investigated,  with  the  view  of  deteriiiiiiin<4-  the  owncrsliij)  of 
ehattels.-  The  term  "goods"  or  '"ehattels,"  as  used  in  this  con- 
neetion,  has  the  same  signification,  and  ineludes  all  sjjeeies  of 
animate  find  inanimate,  movable,  tangible  property.^ 

§  59.  Some  illustrations  of  the  rule.  The  writ  lies  for  do- 
mestic animals,  but  -not  for  \\\U\  animals,  until  after  they  are 
reclaimed;*  or  for  the  increase  of  domestic  animals,  and  the 
plaintift'  may  have  judgment  in  his  favor  for  the  young  of  such 
animals  born,  or  for  wool  shorn  from  them  after  the  animals  are 
replevied.'^  It  lies  for  money  in  a  box  or  bag,  or  so  separated 
from  other  money  that  it  can  be  distinguished  ;  *  or,  bonds  which 
can  be  identified;"  or,  the  records  of  a  [)arish  or  church;"  or 
corporate  company  ; "  or,  for  a  note  or  a  clmck  by  the  legal 
owner ; '°  but  not  by  the  winner  of  a  wager,  against  the  stake- 
holder, for  the  winning."  It  does  not  lie  after  the  death  or  de- 
struction of  the  chattel  sued  for.'^  Neither  can  it  be  employed  to 
quiet  title  to  property  in  the  plaintiff's  possession.'^  Nor  will  the 
action  lie  to  remove  public  papers  or  documents  from  a  public 
office.  Such  instruments  are  in  the  custody  of  the  law,  and  the 
writ,  if  issued  for  their  seizure,  will  be  quashed,  and  the  papers 

=  Snyder  v.  Vaux,  2  Rawle,  (Pa.)  427;  Nibblet  v.  Smith,  4  Durnf.  &  E. 
504;  Gullett  v.  Lamberton,  1  Eng.  (Ark.)  109;  F.  N.  B.  156;  Brown  v. 
Wallis,  115  Mass.  158;  Bacon  v.  Davis,  30  Mich.  157;  Cresson  v.  Stout, 
17  Johns.  121;  Chatterton  v.  Saul,  16  111.  150;  Knowlton  v.  Culver,  1 
Chand.   (Wis.)  214;  S.  C,  2  Pin.  (Wis.)  86. 

'Eddy  V.  Davis,  35  Vt.  248;   Graff  v.  Shannon,  7  Iowa,  508. 

*Amory  v.  Flyn,  10  Johns.  103;  Goff  v.  Kilts,  15  Wend.  550;  Buster  v. 
Newkirk,  20  Johns.  75. 

'Arundel  v.  Trevil,  1  Sid.  81;  Buckley  v.  Buckley,  12  Nev.  423. 

•Bull,  Nisi  Prius,  32;  Skidmore  v.  Taylor,  29  Cal.  619;  Dows  v.  Big- 
nail,  (Lalor's  Sup.,  Hill  &  Denio),  408;  Core's  Case,  Dyer,  22b. 

'Sager  v.  Blain,  44  Hand,  (N.  Y.)  448. 

'Baker  v.  Fales,  16  Mass.  147;  Sawyer  v.  Baldwin,  11  Pick.  492;  Sud- 
bury V.  Stearns,  21  Pick.  148. 

» Southern  Plank  Road  Co.  v.  Hixon,  5  Ind.  166. 

"Clapp  V.  Shepard,  2  Met.  127;  Graff  v.  Shannon,  7  Iowa,  508;  Chick- 
ering  v.  Raymond,  15  111.  363;  Bissell  v.  Drake,  19  Johns.  66.  But,  see 
Barnett  v.  Selling,  70  N.  Y.  492. 

"  Merchant's  S.  L.  &  T.  Co.  v.  Goodrich,  75  111.  554. 

"Lindsey  v.  Perry,  1  Ala.  204;  Scott  v.  Elliott,  63  N.  C.  215. 

"Bacon  v.  Davis,  30  Mich.  157;  Rickey  v.  Hinsdale,  12  Mich.  100. 


WHEN    AND    FOR    WHAT    IT    LIES.  .  89 

returned.'*  Nor  for  an  apprentice,  at  the  suit  of  his  master,  the 
apprentice  being  a  freeman,''  though  it  would  always  lie  for  a 
slave.  Xor  will  it  lie  for  articles  in  actual  use  at  the  time  of  the 
service  of  the  writ.  Beasts  of  the  ])low  or  tools  in  actual  use 
could  not  be  distrained.  Neither  will  it  lie  for  articles  of  clothing 
or  ornament  actually  worn  upon  the  person,  though  it  be  with 
the  design  to  prevent  the  service  of  the  writ.'"  Neither  will  it 
lie  by  the  appointee  to  an  office,  for  his  connuission,  after  it  has 
been  made  out  and  duly  executed  by  the  appointing  power.  The 
judgment  is  for  the  thing  or  its  value,  and  the  value  of  a  i)ublic 
office  cannot  be  ascertained  or  awarded  as  damages,  licplevin, 
in  such  cases,  is  like  repIe^'ying  an  office,  which  the  law  does  not 
permit."  And  without  attempting  to  enter  into  specific  details, 
the  writ  may  be  said  to  lie  for  all  chattels  per.<?onal  which  are 
in  esse,  and  subject  to  manual  delivery,  not  actually  in  use  or 
exempted  by  law.'" 

§  60.  Chattels  severed  from  realty.  Chattels  personal, 
however  ponderous  or  bulky  they  may  be,  and  notwithstanding 
the  fact  that  they  may  have  previously  been  part  of  the  real 
estate,  may  be  recovered  in  this  action.'^  In  Arkansas,  the  statute 
which  made  slaves  real  estate  was  designed  only  to  change  the  mode 
of  descent  and  conveyance,  and  not  to  deprive  the  owner  of  a 
right  to  replevin  them  in  case  they  were  wrongfully  taken  or 
detained.^ 

§  61.  Buildings  are  prima  facie  real  estate.  Buildings, 
such  as  (hvt,'lliiig  houses  and  similar  structures,  arc  priimi  f,ir!,' 
real  estate.^'     They  are  not  fixtures  in  the  common  intcndiiicnL  of 

"Brent  v.  Hagner,  5  Cianch.  C.  C.  71;  Marbury  v.  Madison,  1  Cranch. 
U.  S.  49. 

"Morris  v.  Cannon.  1  Harr.   (Del.)   220. 

"Maxham  v.  Day,  10  Gray.  (Mass.)   213. 

"  Marbury  v.  Madison,  1  Cranch,  U.  S.  50. 

"Brown  v.  Caldwell,  10  S.  &  R.  (Pa.)  118.  The  old  rulo  was  that  it 
would  lie  for  anything  that  could  be  distrained.  Bucon  Abr..  title 
Replevin. 

"Gear  v.  BulJcndick.  :M  111.  71;  Foy  v.  Reddick.  :U  Iiid.  JH;  Uce.sc  i- 
.lared,  l.'S  Ind.  142;  Oml.ony  r.  Jones.  21  Bart)  .^2<i:  Dubois  v.  Kellry.  10 
Barb.  490;  .Mills  i'.  Hedlck.  1  Neb.  437;  IVnnybecker  v.  McDougul.  48 
Cal.  162;  Huebschman  v.  McHenry.  29  Wis.  <;59. 

"Gullett  V.  Lamberton.  1  Kng.   (Ark.)   118. 

"Chatterton  v.  Saul.  10  III.  151;  MadlRan  i'.  McCarthy.  108  Muhh 
376;  Smith  v.  Benson.  1  Hill.  ( N.  Y.)  176;  Meyers  v.  S<hemp.  67  111. 
469;  VauBBC  f.  Russel.  2  McCord,  (S.  C.)  329;  Duvis  v.  Taylor,  41  111. 
40.'i. 


90  THE    LAW    OF    REPLEVIN. 

the  law,  but  part  of  tlie  land."  So,  also,  the  engine  and  other 
machinery  of  a  mill  or  factory  wliich  is  attached  to  or  forms  part 
of  the  permanent  structure,  is  presumptively  part  of  tlie  real 
estate,-^  and  as  such,  not  subject  to  l)e  delivered  on  this  writ;  but 
a  building  may  become  jiersonal  property  with  the  consent  of  the 
owner,  or  by  circumstances  which  clearly  indicate  the  intention 
of  the  owner  so  to  regard  it,  and  it  Avill  then  be  properly  the  sub- 
ject of  delivery  ui)on  the  writ  of  replevin.-'* 

§  02.  Chattels  may  be  attached  to,  and  become  part  of 
the  realty.  Articles  of  personal  })i()[)orty  may  be  permanently 
attached  to,  or  become  part  of  a  building,  and  when  so  attached 
they  are  considered  part  of  the  real  estate,  as  boards  may  be 
wrongfully  taken  and  built  into  a  house  or  other  permanent 
structure,  or  machinery  may  be  permanently  luiilt  into  a  mill. 
In  sucli  case  the  owner  cannot  sustain  replevin,  but  is  driven  to 
his  action  for  the  value.-'' 

§  G3.  What  is  or  is  not  real  estate.  A  discussion  of  what 
is  or  what  is  not  real  estate,  would  more  properly  belong  to  a 
treatise  on  some  other  subject  than  replevin,  but  as  it  is  fre([uently 
the  most  important  question  to  be  determined  before  l)ringing 
this  action,  and  as  articles  which  are  really  chattels  sometimes 
appear  to  be  attached  to  the  realty,  and  articles  which  are  in  fact 
part  of  the  real  estate  sometimes  appear  to  be  chattels,  a  brief  ref- 
erence to  a  few  of  the  authorities  in  which  this  question  and  its 
relation  to  the  action  of  replevin  are  considered,  may  ])e  in  ])lace. 

§  64.  How  far  the  question  as  to  what  is  or  is  not  real 
estate  may  be  investigated  in  replevin.  The  action  will  lie 
for  trade  fixtures  and  other  ])roperty  not  part  of  the  realty,  and 
the  question  as  to  whether  the  property  in  dispute  is  or  is  not 
part  of  the  real  estate  can  generally  l)e  investigated  and  deter- 
mined in  this  action.  While  authorities  on  this  point  are  not  as 
numerous  as  might  be  wished,  it  is  probable  that  the  action 
would  be  permitted  to  investigate  the  title  to  property  concerning 

"Goff  V.  O'Connor,  16  111.  423. 

"  Harlan  v.  Harlan,  15  Pa.  St.  513. 

='*Doty  V.  Gorham,  5  Pick,  487;  Ashmun  v.  Williams,  8  Pick.  402; 
Wells  V.  Banister,  4  Mass.  514;  Ricker  v.  Kelly,  1  Gr.  (Me.)  117;  Yale 
V.  Seely,  15  Vermont,  221;  Fahnestock  v.  Gilham,  77  III.  637;  Beers  v. 
St.  John,  16  Conn.  322;  Dooley  v.  Crist,  25  111.  551;  Nalor  v.  Collinge, 
1  Taunt.  19;  Mansfield  v.  Blackburn,  6  Bing.  426. 

"Fryatt  v.  The  Sullivan  Co.,  5  Hill,  (N.  Y.)  117;  Ricketts  v.  Dorrel, 
55  Ind.  470. 


WHEN    AND    FOR    WHAT    IT    LIES.  91 

the  nature  of  which  an  honest,  fair  question  might  be  made  ;  and 
for  this  purpose  the  sheriff  would  be  warranted,  in  obedience  to 
the  mandate  of  the  writ,  in  severing  and  removing  property 
which  might  appear  to  be  a  part  of  the  real  estiite  ;  but  in  so  do- 
ing the  sheriff  should  exercise  a  reasonable  discretion,  and  if  his 
right  to  sever  the  property  be  denied  on  the  ground  that  it  is  in 
fact  real  estate,  he  ought  to  permit  the  defendant  all  the  oppor- 
tunity to  restrain  the  proceeding  which  he  can  consistently  with 
his  duty,  and  ought  not  to  execute  the  writ  by  making  such 
severance  unless  ic  appears  the  party  is  acting  in  good  faith,  on 
reasonably  probable  grounds,  and  not  then  in  an  oppressive  man- 
ner, or  without  ample  security. 

§  65.  The  same.  Hamilton  v.  Stewart^  59  111.  331,  was  an 
injunction  to  restrain  a  party  from  entering  and  removing  from  a 
basement  room,  certain  fixtures  which  had  been  placed  there  for 
the  convenience  of  parties  occupying  it  as  a  saloon.  The  proj)- 
erty  consisted  of  a  counter,  ice  box,  shelves  and  gas  fixtures. 
The  court  said  that  the  party  would  have  the  undoubted  right  to 
emjiloy  replevin;  and  on  the  trial  the  nature  of  the  fixtures  could 
be  investigated,  whether  they  were  permanently  attaclu'd  to  the 
building  and  formed  jiart  of  the  realty,  or  whether  they  were 
mere  temporary  articles  i)laced  there  for  the  convenience  of  the 
trade  carried  on  in  the  building,  and  which  could  [)roperly  be  re- 
moved by  a  tenant,  or  a  purchaser  from  him;  thus  recognizing 
the  rightof  a  party  to  have  the  question  as  to  whether  the  articles 
were  part  of  the  real  estate  determined  in  the  n'plcvin  suit. 

§  00.  The  same.  When  the  property  was  a  frame  (hvclling, 
it  was  said  that  the  action  should  not  be  dismissed  until  tlic 
court  could  first  determine  from  the  evidence  wlu-ther  it  was  real 
or  j)ers(»nal  jtropiM'ty.'-""'  So  it  was  no  cause  of  (leiiuiirer  to  a  dw- 
laiatioii  in  replevin  that  it  was  ])rought  for  a  barn,  shingle  mill 
and  otlice.  These  things  might  be  real  estate  ;  yet  they  might 
be  personal  pioperty  ;  and  whetlu;r  they  are  or  not  is  a  matter  of 
evidence  U[)on  which  the  court  nuist  determine  as  the  facts  siiali 
appear  after  a  full  consideration  of  the  evidence.'' 

*>  Elliott  V.  Black,  a:,  Mo.  37:{. 

"linearly  v.  Cox.  4  Zab.  (24  N.  J.)  287.  CoiihiiU,  uIho.  Outhrlo  r. 
.JoneH.  108  Ma88.  193;  Hanrahan  v.  O'Uellly.  102  Muhh.  201;  FHhiu'Htock 
V.  Gllham.  77  III.  037;  Goodrich  v.  Jono8.  2  lilll.  142;  Roynoldii  v. 
Shuler.  .'i  Cow.  323.  |Tlif  charartjr  of  tlio  thIiiK  Ih  not  tlctorinlniM!  hy 
ItH  name:  a  declaration  In  r<iilevln  for  a  mill,  barn,  o  111(0  or  tlio  llkf. 


92  THE    LAW    OF    REPLEVIN. 

67.  The  same.  Trade  fixtures.  Ewell  on  Fixtures  (p. 
91)  states  the  law  to  be  well"  .settled  'Hliat  mere  utensils  or  ma- 
chines, or  other  articles  of  a  similar  nature,  being  themselves  of  a 
chatti'l  nature,  and  capable  of  being  detached  without  material 
injury  to  the  freehold  or  themselves,  and  of  being  set  ui)  and  used 
elsewhere,  are  removable  by  the  tenant  or  his  vendee  during  his 
term."  All  such  articles  would  therefore  be  the  proper  subjects 
of  a  suit  in  replevin,  and  the  officer  having  such  a  writ,  properly 
describing  them,  would  without  question  be  authorized  to  sever 
and  remove  them.  "  On  the  other  hand,"  continues  the  same  au- 
thority (p.  93),  "  there  niay  be  annexations  made  by  a  tenant  oc- 
cupying premises  for  trade  purposes  of  so  intimate  and  permanent 
a  character  as  to  furnish  satisfactory  evidence  that  the  annexa- 
tions were  intended  to  be  permanent  accessions  to  the  realty." 
In  such  cases  the  action  of  replevin  would  of  course  fail ;  but  this 
statement  of  the  general  rule  leaves  a  wide  field  open  to  dispute 
as  to  whether,  in  any  particular  case,  the  property  in  question 
should  be  placed  with  the  former  or  the  latter  class.  Upon  this 
question  it  can  only  be  said  that  each  case  must  necessarily  pre- 
sent a  mixed  question,  consisting  mostly  of  fact,  to  which  the 
general  rales  of  the  law  must  be  applied.^* 

§  OH.  Buildings  while  fixed  are  part  of  the  realty  ;  while 
being  moved  are  personalty.  In  Illinois  when  a  house  was 
built  on  a  foundation  in  such  a  manner  as  showed  that  it  was  in- 
tended for  a  permanent  residence,  and  not  for  a  temporary  pur- 
pose, it  was  held  part  of  the  realty,  and  in  such  case  if  the  house 
had  been  removed  to  another  lot,  and  there  again  fixed  upon  a 

is  not  bad  on  demurrer,  Brearly  v.  Cox,  supra.  A  "frame  building" 
is  not  ex  vi  termini  parcel  of  the  realty;  the  question  is  to  be  settled 
by  the  evidence,  Eliott  v.  Black,  45  Mo.  373.  A  deed  of  trust  of  the 
lands  of  a  mining  corporation  included,  among  other  things,  "  one 
steam  engine  and  fixtures  and  two  boilers;  "  they  were  erected  by 
the  corporation  and  attached  to  the  soil.  Held,  that  notwithstanding 
the  designation  of  them  in  the  manner  indicated,  they  were  part  of 
the  freehold  and  not  personalty,  Jenney  v.  Jackson,  6  Ills.  Ap.  32.  But 
in  Bridges  v.  Thomas,  8  Okla.  620,  58  Pac.  955,  the  authority  of  Brearly 
V.  Cox,  supra,  was  rejected  and  it  was  held  that  describing  a  house  as 
"  goods  and  chattels  "  will  not  suffice,  that  the  special  facts  which  give 
it  the  character  of  personalty  must  be  set  forth.] 

^Consult  Brown  v.  Wallis,  115  Mass.  158;  Guthrie  v.  Jones,  108  Mass. 
191;  Cresson  v.  Stout,  17  Johns.  116;  Hanrahan  v.  O'Reilly,  102  Mass. 
201;  Bliss  v.  Whitney,  9  Allen,  114;  Cong.  Society  of  Dubuque  v.  Flem- 
ing, 11  Iowa,  533. 


WHEN    AND    FOR    WHAT    IT    LIES.  93 

peimauent  foundation,  such  as  would  show  it  was  intended  to  be 
permanent,  thougli  it  might  be  regarded  as  personal  property 
while  in  transit,  yet  when  so  lixed  upon  the  second  lot  it  woukl 
again  become  realty,  and  not  subject  to  replevin/^ 

§  69.  Fixtures,  or  other  articles  severed  from  the  realty, 
become  personalty.  Fixtures  severed  from  the  realty  become 
personal  property,  and  are  subject  to  recovery  in  this  action  as 
though  never  attached  to  the  soil.*"  Thus  it  lies  for  machinery  o^ 
a  mill  severed  from  the  real  estate,"  or  trees  cut  down  ; "  or  prop- 
erty which  would  otherwise  be  treated  as  real  estate  may,  by  the 
act  of  the  parties,  be  regarded  and  treated  as  personal,  even 
without  actual  severance,  and  so  become  the  subject  of  recovery 
in  this  action.^^  Grass  cut  from  the  freehold  is  personal,  and  in 
an  action  for  it  the  pUiintiff  need  not  show  title  to  the  land.'' 

§  70.  The  same.  Where  a  person  purchased  a  mill  at 
sheriff's  sale,  and  the  real  estate  on/i/  was  sold,  another  party 
claimed  the  machinery  and  severed  and  took  it,  with  the  knowl- 
edge of  the  purchaser  at  the  sheriff's  sale,  who  afterward  brought 
replevin,  claiming  it  as  part  of  the  real  estate.  The  pun-luiser 
was  permitted  to  show  that  it  was  in  fact  part  of  the  realty,  and 
was  sold  by  the  sheriff  with  the  realty  and  conveyed  to  him,  and 
upon  making  such  i)roof  he  could  sustain  replevin  against  the 
party  who  wrongfully  severed  it.'^  AVhen  one  built  a  mill  on  the 
lantl  of  another,  under  an  agreement  tliat  it  was  to  Ite  the  prop- 
erty of  the  builder  until  a  certain  judgment  should  be  paid,  the 
judgment  was  not  paid  but  the  land,  with  the  mill  standing 
thereon,  was  sold  on  execution,  the  mill  was  lifld  to  be  the  prr- 
sonal  property  of  the  builder." 

§  71.     The  same.     Twc^  persons  leased  land  for  a  salt  well  on 

"Salter  v.  Sample,  71   111.  431. 

"'Brown  v.  Caldwell.  10  S.  &  R.  118;  Heaton  v.  FIndlay.  12  Pa.  St. 
304;  Mather  v.  Ministers  of  Trinity  Church,  ."5  S.  &  H.  r)()9.  Compare 
Voorhis  v.  Freeman,  2  Watt.s  &  Scrg.  11«;  Pyl<'  r.  Fcniiock.  lb.  2i>0; 
taker  v.  Howell.  C  S.  &  R.  47C. 

"Cresson  v.  Stout,  17  Johns.  110;    Harlan  r.  Harlan.  IF.  Vn.  St.  TiM. 

°  Richardson  v.  York,  2  Slu^p.  (Me.)  21  r,;  iJowi-r  r.  HlKhw,  5»  Mo. 
200. 

"Shell  V.  Haywood,  K;  F'a.  St.  .'■>27;   IMp<«r  r.  .Martin,  S  H;irr.  (I'.i  )  211. 

".Johnson   i'.   Rarber,  r.  (Jilman.    (111.)    42f; 

"Harlan  r.  Harlan,  If.  I'a.  St.  M.'!  See.  also,  llralon  i.  FIndlay,  12 
I'a.  St.  301, 

**Yater  v.   Mullen.  24    Ind.   277. 


94  THE    LAW    OF    REPLEVIN. 

shares.  Petroleum  came  up  with  the  salt  water  and  they  col- 
lected ami  sold  it,  and  the  owner  of  the  land  brought  trover. 
The  court  held  that  the  salt  only  was  granted,  and  that  every- 
thing else  was  reserved,  but  that  as  the  lessees  could  not  run  the 
salt  water  without  the  petroleum,  that  the  severance  of  the  oil 
from  the  real  estate  was  inevitable  and  lawful,  and  that  this 
possession  by  the  defendants  was  lawful ;  that  trover  would  not 
lie  ;  that  the  proi)er  remedy  Avas  in  equity."  This  case  conforms 
in  principle  so  far  as  the  question  of  severance  is  concerned,  to 
the  current  of  authorities,  but  no  good  reason  is  perceived  why, 
if  the  owner  of  the  land  was  entitled  to  the  oil,  he  could  not,  after 
demand,  recover  it  in  replevin. 

§  72.  The  same.  A  party  bought  a  lot,  paying  only  a 
small  part  of  the  i)ur('ha.se  money,  and  built  a  house  on  it.  After 
a  number  of  installments  of  the  purchase  money  were  due  and 
unpaid,  he  moved  the  house  off.  Thereupon  the  owner  of  the 
ground  demanded  it  as  personal  property,  and  replevied  it.  It 
was  held  that  the  action  was  proper  and  could  be  sustained,  so 
long  as  the  house  was  not  pennanently  attached  to  other 
realty.'* 

§  73.  The  severance  of  chattels  does  not  change  the 
title.  It  is  an  unciuestioned  rule  of  the  common  law  that  stand- 
ing trees  belong  to  the  realty,  and  as  such  they  are  not  subject  to 
replevin,  but  trees  cut  doAvn  by  a  tenant  become  personal  prop- 
erty, and  if  the  tenant  had  no  right  to  cut  them  they  belong  to 
the  ownei'  of  the  land,  and  he  can  sustain  replevin  for  them.-"* 
Timber  cut  on  State  lands  belongs  to  the  State,  and  may  be 
followed  as  long  as  it  can  be  identified.**'  When  plaintiff  bought 
laud  at  sheriff's  sale,  and  took  deed.s,  and  also  took  possession,  with 
permission  to  defendants  to  remain  in  two  houses  on  the  land  as 
tenants  at  sufferance,  and  while  there  they  cut  hay  on  the  land, 
the  purchaser  was  allowed  to  recover  in  replevin."  The  reason 
for  this  rule  is,  that  a  severance  of  property  from  the  realty  does 
not  change  the  ownership.     It  belongs  to  the  owner  of  the  land 

"  Kier  v.  Peterson.  41  Pa.  St.  358. 

=«Ogden  V.  Stock,  34  111.  522.     See,  also,  Salter  v.  Sample;  71  111.  432. 

"Paget's  Case,  5  Co.  Rep.  76b;  Richardson  v.  York,  2  Shep.  (14  Me.) 
216;  Bower  v.  Higbee,  9  Mo.  2G0;  Gillerson  v.  Mansur,  45  Me.  26;  Sny- 
der V.  Vaux,  2  Rawle,  (Pa.)  427. 

*"  Schulenberg  v.  Harriman,  21  Wall.  44. 

« Nichols  V.  Dewey,  4  Allen,  (Mass.)  386. 


WHEN    AND    FOR    WHAT    IT    LIES.  95 

as  much  after  the  severance  as  before,  and  he  is  entitled  to  all  the 
remedies  for  its  recovery  which  the  law  allows  for  uu}'  personal 
property  wrongfully  taken  or  detiiined  from  its  owner.*- 

§  74.  The  same.  Growing  crops.  Crops  growing  on  land 
pass  with  the  title  to  the  realty.  So,  when  a  tenant  rents  land 
from  one  against  whom  suit  in  ejectment  is  pending,  of  which 
the  tenant  has  notice,  and  the  suit  is  determined  against  his  land- 
lord, the  growing  crops  pass  with  the  soil,  and  the  party  recover- 
ing in  ejectment  may  recover  them  in  replevin,  if  the  tenant 
harvests  them  and  refuses  to  deliver  "  Upon  a  sale  of  the  land, 
and  reservation  in  the  deed  of  plants  or  crops  growing  thereon, 
they  become  personal  property,  and  replevin  will  lie  for  their  re- 
covery." So  where  crops  of  wheat  or  corn  are  wrongfully  severed 
by  a  trespasser,  the  owner  is  not  thereby  divested  of  his  property, 
but  may  sustain  replevin.'' 

§  75.  Actual  severance  not  necessary  to  give  property 
the  character  of  personalty.  An  actual  severance  or  disron- 
nection  of  i)roi)erty  from  the  real  estate  is  not  essential  to  give  it 
the  character  of  per.sonal  property.  Simple  consent  or  agreement 
of  the  owner  of  the  real  estate  will  usually  be  sufficient,  and  such 
consent  may  be  inferred  from  his  acts  or  from  his  dealings,  when 
they  clearly  indicate  such  intentions.  Thu.s,  the  sale  of  an 
engine  and  boiler  separate  from  the  land,  accompanied  by  posses- 
sion and  acts  of  ownership  by  the  vendee,  amounts  to  a  severance 
of  the  property  from  the  real  estate.** 

§  76.  The  same.  A  building  or  other  lixturc,  wliicli  is  oi- 
dinarily  a  i)art  of  the  real  estate,  when  j)lac('d  on  the  land  of 
another,  with  his  consent,  with  the  intention  of  removal,  is  ic- 
garded  as  personal  property,  and  may  be  the  subject  of  replevin.*' 

"  Halleck  v.  Mixer,  IG  Cal.  TuS. 

"Rowell  r.  Klein.  44  Ind.  290,  filing  many  rasos.  Manuro  mado  on 
the  farm  is  part  of  the  rejilty,  but  not  manure  made  at  a  llvfry  stal)le. 
Daniels  v.  Pond,  21  PIclc.  370;   MIddlebrook  v.  Corwin.  If.  WiMid.  ir,;t. 

"Ring  V.  Billings,  51  111.  47r.;  GIbbonH  t'.  Dillingham,  f.  KiiK. 
(Ark.)  9. 

"Bull  V.  Griswold.  19  111.  c:?!';  AndiTKon  r.  HapuT,  M  111.  4:{'.»;  Lang- 
don  V.  Paul.  22  Vt.  205;  Sands  v.  I'diittur,  10  Cal.  258;  SandcrH  i'.  Uecd, 
12  N.  H.  558. 

"HenKley  r.  Brodle.  M)  Ark.  .511. 

"  Wf-atherHby  v.  SU'«-p«'r.  42  MIhh.  732;  Hln<-H  »-.  Ammt.  43  Mo.  300; 
Ashmun  v.  WllllaniH,  H  IMrk.  40L':  UuhkcI!  i'.  HichardH.  10  .Mi-.  429;  Foy 
V.  Reddick,  31  Ind.  414 


9G  THE    LAW    OF    REPLEVIN. 

In  California,  a  building  which  was  placed  on  blocks  not  in  any 
way  attached  to  the  soil,  was  regarded  as  personal  property/* 
A  fence  was  built  on  the  land  of  another  by  mistake,  and  remained 
there  for  fifteen  years  with  the  consent  of  the  owner  of  the  land ; 
he  then  requested  the  plaintiff  to  remove  it,  and  shortly  after 
took  it  away  himself.  The  owner  of  the  fence  brought,  and  was 
permitted  to  sustain  replevin." 

§  77.  Chatties  fixed  to  the  land  of  another  without  his 
consent.  Where  the  owner  of  chattel  i)roi)erty  fixes  it  to  the 
real  estate  of  another  without  his  consent,  it  becomes  real  estate, 
and  cannot  be  the  subject  of  an  action  of  replevin.  So,  if  one 
acquire  possession  of  his  neighbor's  chattels,  and  fix  them  to  liis 
own  land,  so  that  they  form  part  of  the  real  estate,  though  tres- 
pass or  trover  might  lie,  replevin  Avould  not  furnish  a  remedy.^ 
A  building  placed  on  the  land  of  another  by  mistake,  without  the 
owner's  knowledge  or  consent,  would  be  personal  property,  and 
liable  for  the  debts  of  the  builder — the  owner  of  the  land  not 
objecting.-'' 

§78.  Same.  Entry  under  adverse  claim.  Where  one  en- 
ters  on  the  land  of  another  under  an  adverse  claim,  and  erects  a 
house,  and  after  ejectment  removes  the  house,  the  owner  of  the 
land  can  recover  it  in  replevin ;  and  the  fact  that  it  was  a  wooden 
building,  and  that  the  builder  erected  it  intending  to  remove  it  at 
some  future  day,  will  make  no  difference ;  ^^  but  in  such  case,  if 
the  building  had  been  removed  before  the  suit  in  ejectment  was 
determined,  it  might  have  presented  another  case.^' 

§  79.  The  title  to  real  estate — when  evidence  in  replevin. 
While,  as  has  been  -shown,  replevin  does  not  lie  for  real  estate, 
and  the  title  thereto  cannot  be  directly  tried  in  this  action,^*  yet 
this  rule  only  api)lies  so  far  as  the  suit  is  for  the  purpose  of  in- 
vestigating the  title  to  real  estate.  When  the  title  only  comes  in 
question  as  a  means  of  determining  the  ownership  of  chattels, 
there  is  no  reason  why  the  courts  having  the  proper  jurisdiction 

*'  Pennybecker  v.  McDougal,  48  Cal.  162.    See,  also,  Mills  v.  Redick,  1 
Neb.  437.    But,  see  Huebschman  v.  McHenry,  29  Wis.-  658. 
•"Hines  v.  Ament,  43  Mo.  300. 
'"Fryatt  v.  The  Sullivan  Co.,  5  Hill.    (X.  Y.)   117. 
"  Fuller  V.  Tabor,  39  Me.  520. 
"  Huebschman  v.  McHenry,  29  Wis.  659. 
■^See  §  85  and  note,  and  §  88  and  note. 
"  See  ante,  §  58. 


WHEN    AND    FOR    WHAT    IT    LIES.  97 

may  not  resort  to  an  inquiry  into  the  title  of  real  estiite,  as  deter- 
mining the  ownership  of  chattels  which  have  been  severed  there- 
from ;  for  in  such  case  it  is  not  a  trial  of  the  title  to  lands,  but  of 
chattels." 

§  SO.  The  same.  The  current  of  authorities  fully  sustains 
this  doctrine.  The  title  to  land  must  sometimes  be  in(}uired  into, 
as  the  only  means  of  determining  the  ownership  of  chattels 
which  have  been  severed  therefrom,  and  in  such  case  deeds  and 
title  papers  may  be  read  in  evidence,  in  replevin.  As  a  general 
rule  governing  such  cases,  it  may  be  stated  that  the  title  to  real 
estate  may  be  incidentally  called  in  question  in  this  action,  not  for 
the  purpose  of  determining  disputed  titles  to  real  property,  but  to 
enable  the  court  to  pronounce  intelligently  on  the  title  to  chat- 
tels, where  other  evidence  leaves  a  doubt. 

§  81.  Holder  of  colorable  title  cannot  recover  chattels 
severed.  In  a  suit  for  logs  cut  on  land,  the  title  to  wiiieh  was 
claimed  by  plaintiff,  and  of  which  the  plaintiff  was  in  actual 
possession,  the  action  might  be  sustained  without  proof  of  title  ; 
but  in  such  case  the  defendant  could  show  an  adverse  title  to 
the  land  of  a  higher  character  than  the  plaintiff's  and  defeat  the 
action.  The  holder  of  colorable  title,  without  other  right,  though 
in  possession,  cannot  recover  against  the  real  owner  by  a  resort  to 
replevin,  any  more  than  in  any  other  action  ;  ^  but  the  holder  of 
colorable  title  in  good  faith  would  doulttless  be  permitted  to  de- 
fend in  this  action.'  Where  tla^  ])laiiitill  cleared  land  and  put 
in  wheat,  and  was  in  possession  when  the  defendant  entered  and 
cut  it,  tlie  defendant  offered 'to  jirove  that  the  land  was  his,  and 
that  the  plaintiff"  was  a  trespasser,  in  sowing  the  grain,  and  the 
court  admitted  the  evidence.'^'' 

§  ^-.      The   same.      Defendant   holding    under   claim  of 

title  in  good  faith.       I'Ut    wlicn  Ihe  derciulalil    is  in   possession  of 

the  land,  holding  adversely  under  color  of  title  in  good  faith,  the 
plaintiff,  even  tliougli  h<?  be;  tin?  real  owner  (jf  tiie  soil,  cannot  re- 
covei-  chattels  severed  therefrom.  IJeplevin  cannot  l»e  the  means 
of  litigating  and  determining  the  title  to  real  estate  bi'tAveen  ad- 

"  Clement  v.  Wright.  40  Pa.  St.  251. 

"HiiriKorforfl  v.  Rrdfonl,  29  WIh.  347.  Seo,  nlso.  S(  hiilcniMMK  v. 
Campbell.  14  Mo.  VXi;  Harlan  i.  Harlan.  15  Pa.  St.  513;  Hart  v.  VlnBunt. 
€  HelHk.  (Tenn.)   CH;. 

"  See  pout,  fi  K2. 

••Elliott  V.  Powell.  10  WattH.   (Pa.)   451 
7 


58  THE    LAW    OF    REPLEVIN. 

verse  claiuKints.''"  Tlie  owner  of  hind  may  bring  replevin  for 
^-battels  severed  from  the  freehold,  where  there  is  no  adverse  pos- 
session, or  where  the  adverse  possessor  is  a  trespasser ;  but  the 
law  does  not  permit  adverse  claimants  to  contest  the  title  to 
land  under  j)retense  of  a  contest  about  chattels,  as  this  would 
perhaps  sometimes  give  a  decided  advantage  to  the  i)laintiff ;  "^ 
and  the  general  rule  may  be  stated  that  neither  replevin  nor 
trover  lies  against  a  party  in  the  actual  possession  of  land  hold- 
ing title,  for  timber,  slate,  or  any  other  tiling  severed  therefrom, 
even  in  case  the  title  is  in  dispute,  but  it  does  lie  by  the  owner  in 
possession  either  actually  or  constructively,  as  against  one  who 
wrongfully  severs  and  removes  any  part  of  the  realty  without 
color  of  right.*' 

§  83.  The  same.  The  action  cannot  be  used  to  litigate 
title  to  land.  This  rule,  though  clearly  defined  and  well  estal)- 
lished,  nsquires  some  care  in  its  application.  When  the  plaintiff 
bases  his  right  to  recover  a  chattel  which  has  been  severed  from 
realty,  on  the  fact  that  he  owns  and  is  entitled  to  immediate  pos- 
session of  the  land  from  which  the  chattel  was  severed,  he  may 
give  evidence  of  his  title  to  the  land,  and  that  will  establish  his 
title  to  the  chattel,  and  a  mere  intruder  or  trespasser  on  the  land 
cannot  object  so  as  to  defeat  the  action  ;  but  when  the  defendant 
in  such  cases  is  in  possession,  and  claims  a  title  adverse  to  the 
plaintiff,  and  has  color  of  title  in  good  faith,  the  plaintiff  cannot 
recover  against  him  in  replevin.*^ 

'•»  Snyder  v.  Vaux,  2  Rawle,  (Pa.)  427;  Halleck  v.  Mixer,  16  Cal.  575; 
Harlan  v.   Harlan,  15  Pa.  St.  513;    DeMott  v.  Hagerman,  8  Cow.  219. 

""Vausse  v.  Russell,  2  McCord,  329;  Mather  v.  Trinity  Church,  3  S. 
R.  509;  Baker  v.  Howell,  6  S.  &  R.  476;  Brown  v.  Caldwell,  10  S.  &  R. 
114;  Powell  v.  Smith,  2  Watts,  126;  De  Mott  v.  Hagerman,  8  Cow.  220; 
Davis  V.  Easley,  13  111.  192;  Saunders  v.  Reed,  12  N.  H.  558;  Lang- 
don  V.  Paul,  22  Vt.  205;  Sands  v.  Pfeiffer,  10  Cal.  258;  Anderson  v. 
Hapler,  34  111.  436;  Cresson  v.  Stout,  17  John.  116. 

'•'Brewer  v.  Fleming,  51  Pa.  St.  Ill;  Wright  v.  Guier,  9  Watts,  172; 
Elliott  V.  Powell,  10  Watts,  454;  Harlan  v.  Harlan,  3  Harris,  (15  Pa. 
St.)  509;  Brown  v.  Caldwell,  10  S.  &  R.  (Pa.)  114.  Where  a  disseizor 
enters  and  sows  wheat,  and  the  real  owner  afterward  re-enters,  he 
shall  have  the  crop,  whether  cut  and  on  the  premises  or  growing, 
because  he  takes  his  former  title,  and  the  crops  belong  to  him,  and 
the  disseizor  can  take  nothing.     Hooser  v.  Hays,  10  B.  Mon.   (Ky.)   72. 

"=  Halleck  v.  Mixer,  16  Cal.  579;  Page  v.  Fowler,  28  Cal.  608;  Harlan  v. 
Harlan,  15  Pa.  St.  513;  Anderson  v.  Hapler,  34  111.  439. 


WHEN    AND    FOR    WHAT    IT    LIES.  99 

§  84.  The  same.  Chattels  severed  through  mistake  in 
boundaries.  When  O.  built  a  cabin  and  stabk',  and  rUL  timber 
on  land,  the  boundaries  of  which  were  not  exactly  known,  and 
some  of  the  timber  cut  was  on  tlie  land  of  another,  it  was  held 
that  the  possession  of  the  land  where  the  timber  was  cut  was  not 
such  as  could  be  used  as  a  defense  in  a  suit  in  replevin.  Nothing 
short  of  an  actual  adverse  possession,  under  claim  of  ownership, 
will  deprive  the  owner  of  the  right  to  sue  iu  this  action  for  chat- 
tels severed  from  his  land  ;  "  and  the  rule  that  a  party  in  posses- 
sion under  paper  title  is  restricted  in  his  possession  by  the  calls 
in  his  deed  (unless  he  has  actual  possession  of  other  lands),  applies 
in  replevin  as  in  other  actions. 

§  85.  The  same.  Chattels  severed  by  a  trespasser. 
Plaintiff  was  in  possession  of  about  eigbt  hundred  acres  of  land, 
which  had  been  inclosed  for  several  years,  but  the  fences  had  fallen 
down  in  places.  Defendants  entered  and  claimed  to  preempt, 
each  one-quarter  section.  They  built  houses  and  lived  on  the 
claims.  They  were  not  successful  in  establishing  their  claim  for 
pre-emption,  and  plaintiff  recovered  against  them  in  ejectment. 
While  they  were  in  possession,  they  cut  hay,  which  the  plaintiff 
replevied.  Held,  that  the  replevin  suit  could  not  be  sustained ; 
that  the  owner  of  the  land  was  out  of  the  possession,  and  defend- 
ants in  possession,  claiming  to  own  it.  The  owner  of  land,  being 
ousted,  may  have  his  action  for  the  rents  and  jjrotits,  but  not  for 
the  crops  grown  on  the  land  and  harvested  and  removed  by  the 
disseizor.  The  law  in  all  such  cases  gives  the  owner  an  action  for 
the  rents  and  profits,  but  not  the  crops,  or  their  value.  It  would 
be  oppressive  to  require  one,  after  years  of  litigation,  after  finding 
he  had  a  bad  title,  to  pay  the  value  of  the  crops  grown  ;  and  it 
would  l)e  an  inconvenience  to  tluj  public  if  they  were  obligi'd  to 
look  at  his  title  before  buying  his  crops.** 

§  80.  The  same.  When  replevin  was  brouf^ht  f<tr  wood  cut 
on  plaintiff's  land  by  defeuflant,  who  was  in  possession  as  a  tres- 
pa.sser  without  color  of  title,  adverse  possession  (jf  the  land,  un- 
less for  a  period  long  enough  for  the  sUitute  of  limitation  to  luu, 
would  ri(»t  prot<;(*t  tlu;  defendant  in  au  action  for  the  timlM-r 
severed  from  the  realty  ;  the  court  saying  that  when  the  defend- 
ant is  in  iKjHHession  as  a  trespa-sser,  his  rij^hts  resting  only  on  a 
ruik(;d  aH.sertion  of  title  sufficient  to  put  the;  statute  of  liutiUitions 

"Young  V.  HtTdlc.  55  I'a.  St.  172. 

•♦Page  V.  Fowler,  39  Cal.  415;   I'age  v.  ImjwIit,  L'K  Cal.  «](i8. 


100  THE    LAW    OF    REPLEVIN. 

in  operation,  the  question  of  title  cannot  be  said  to  be  in  issue 
until  the  statute  has  actually  run.'-' 

§  87.  The  same.  When  a  trespasser  entered  on  land  and 
sowed  grain,  and  the  land  was  afterward  sold  by  the  sheriff  upon 
execution  against  the  owner,  the  purchaser  at  such  sale  was  en- 
titled to  the  grain ;  and  when  the  purchaser,  by  mistake,  took  the 
trespasser  for  a  tenant  of  the  former  owner,  and  seized  upon  the 
grain  by  distress  for  rent,  and  it  was  rei)levied  by  the  trespasser, 
who  pleaded  non  tenuit  to  the  avowry  in  replevin,  the  defendant 
in  replevin  (the  purchaser)  was  entitled  to  take  him  at  his  word, 
and  if  not  a  tenant  he  was  a  trespasser,  and  the  defendant  in  re- 
plevin was  entitled  to  recover."*  The  doctrine  stated  has  been 
carried  even  further  in  California,  where  it  was  said  the  owner  of 
the  land  cannot  sustain  replevin  for  croj^s  raised  on  the  land  by 
one  who  holds  possession  with  adverse  claim  of  right,  even  though 
without  color  of  tiflf.^'' 

§  88.  Where  a  party  in  possession  of  lands  claiming  to 
own  them  severs  chattels.  Land  was  in  the  actual  possession 
of  \V.,  claiming  the  premises  as  his  own,  and  holding  adversely  to 
plaintiff,  who  had  the  title  ;  while  so  in  possession  he  cut  a  quan- 
tity of  hay  and  sold  it  to  defendant,  and  plaintiff  brought  replevin. 
Jleld,  it  could  not  be  sustained,  W.  being  in  possession  and  claim- 
ing title  must  be  regarded  as  the  owner  until  after  judicial 
decree.** 

§  89,  Summary.  From  these  cases  it  would  seem,  then,  that 
the  mere  assertion  of  title  by  one  in  possession  will  not  defeat 
the  rights  of  the  real  owner  of  the  fee.  The  law  will  not  permit 
a  mere  trespasser  to  set  up  a  claim  of  title  and  thus  acquire  rights, 
or  protect  himself  in  his  wrong-doing.  The  title  Avhich  will  pro- 
tect one  in  possession  must  be  a  colorable  title,  made  in  good 
faith.  It  is  not  adverse  possession  alone,  nor  adverse  possession 
claiming  title,  unless  for  a  sufficient  length  of  time  for  the  statute 
of  limitations  to  run  that  constitutes  the  grounds  of  defense,  but 
a  colorable  title  made  in  good  faith.  The  assertion  of  title  by  a 
trespasser  confers  no  title.''' 

•^  Kimball  v.  Lohmas,  31  Cal.  155. 

^Hellings  v.  Wright,  14  Pa.  St.  375. 

"  Pennybecker  v.  McDougal,  46  Cal.  662. 

^Stockwell  V.  Phelps,  34  N.  Y.  363.  See  Mather  v.  Ministers,  etc., 
Trinity  Church,  3  S.  &  R.  509;  Lehman  v.  Kellerman,  65  Pa.  St.  489; 
Ralston  v.  Hughes,  13  HI.  469. 

^Halleck  v.  Mixer,  16  Cal.  574;   Page  v.  Folwer,  39  Cal.  412;  Kimball 


WHEN    AND    FOR    WHAT    IT    LIES.  101 

§  90.  How  far  a  mortgage  on  real  estate  passes  title  to 
chattels  severed  therefrom.  The  question  as  to  how  far  a 
mortgage  passes  the  title  to  land  so  as  to  convey  chattels  severed 
from  the  realty  to  the  mortgagee  is  often  of  the  greatest  impor- 
tance, and  sometimes  attended  with  considerable  ditticulty.  Upon 
this  question  authorities  are  not  uniform.  The  general  rule  may 
be  stated,  that  in  States  where  the  mortgage  is  by  law  regarded 
as  an  absolute  conveyance  of  the  land  with  a  condition  of  defeas- 
ance on  payment  of  the  mortgage  debt,  that  chattels  severed  from 
the  realty  during  the  existence  of  the  mortgage  may  be  said  to 
belong  to  the  mortgagee,  aiid  he  may  recover  them  in  an  action  of 
replevin.  But  when  the  mortgage  is  only  regarded  as  a  security 
for  debt,  and  not  a  conveyance  of  the  title  to  the  land  chattels 
severed  from  the  land,  do  not  necessarily  belong  to  the  mortgagee, 
at  least  not  until  after  default  and  foreclosure.  In  many  of  the 
States  a  mortgage  is  considered  a  conveyance  of  tlie  fee,  and  in 
such  ca.se  a  fixture  severed  without  the  consent  of  the  holder  of 
the  mortgage  so  as  to  endanger  the  security  may  be  recovered  in 
replevin,  as  he  is  looked  U])on  as  the  owner  of  the  fee.'" 

§  91.  The  same.  In  ^linnesota  it  was  held  that  the  holder 
of  a  mortgage  on  real  estate  is  not  entitled  to  the  timber  cut  from 
the  mortgaged  property,  even  after  default,  until  he  shall  have 
foreclo.sed  his  mortgage.  The  reason  for  this  decision  seems  to  be 
based  on  the  statute  which  substantially  declares  that  a  mortgage 
shall  not  be  held  a  conveyance  so  as  to  entitle  the  holdi-r  to  re- 

V.  Lohmas,  31  Cal.  158;  Stockwell  v.  Phelps.  34  X.  Y.  363;  Brown  r. 
Caldwell,  10  S.  &  R.  118.  An  execution  debtor  has  no  rifiht  to  keep 
purchaser  at  sheriff's  sale  out  of  possession  by  sowing  crops  (wheat) 
whirh  may  not  mature  until  after  the  purchaser  is  entitled  to  his  deed. 
The  debtor,  after  such  sale,  cannot  maintain  replevin  for  such  crops 
as  sown  by  himself.  Parker  r.  Storts,  15  O.  St.  352.  It  was  said  if 
the  owner  of  a  mill  take  out  a  mill  stone  to  pick  it,  and  devise  the 
mill  while  it  is  out,  the  mill  stone  shall  pass  by  the  devise.  Hull.  N. 
P.   34. 

'•Smith  V.  Goodwin.  2  Me.  173;  Hemenway  v.  Bassett.  13  Grey.  378; 
Gore  V.  .lenness,  19  Me.  53;  Roberts  v.  Dauphin  Bank.  19  Pu.  St.  75; 
Cope  V.  Romeyne,  4  McLean.  3SI;  Latham  r.  Blakdy.  70  .\.  ('.  3^8; 
Gray  v.  Holdshlp,  17  S.  &  R  113;  ('.off  f.  O'Connor.  10  III.  421; 
Sanders  r.  Reed.  12  N.  H.  5f;i;  I''r<)thlnKhani  r.  McKuslck.  24  Mo.  405; 
BuHHcy  V.  Page,  14  Me.  132;  Smith  v.  Moore,  11  N.  11.  55;  Thom«H  i- 
Crofut,  14  N.  Y.  474;  Van  Pelt  v.  McGraw.  4  N.  Y.  Ill;  Fernald  r. 
Llnacott,  6  Me.  234;  Bratton  v.  ClawBon.  2  Strobh.  ( S.  C.)  478. 


102  THE    LAW    OF    REPLEVIN. 

cover  possession  without  foieelosnre."  Hut  in  Khode  Island  it 
was  held  that  the  mortgagee  could  sustain  replevin  against  the 
niortgageor "  in  possession  for  timber  cut  on  the  mortgaged 
})remises  in  suhstantial  diminution  of  tlie  security  of  the  mort- 
gage." Substantially  the  same  rule  was  declared  to  be  the  law  in 
3Iaijie  and  New  York,  Avhere  the  court  permitted  the  mortgagee 
before  entry  to  recover  in  trespass  for  cutting  timber  in  the  mort- 
gaged premises ;  the  reason  being  that  it  might  diminish  the 
security." 

§  02.  The  same.  In  Vermont  the  mortgagee,  after  condition 
broken  and  before  foreclosure,  was  allowed  to  sustain  trover 
against  the  mortgageor  for  the  value  of  timber  cut,  and  replevin 
would  of  course  have  been  permitted  had  that  been  the  form  of 
the  action.'^  But  in  Kansas  the  mortgageor  removed  a  house 
from  the  mortgaged  premises  and  the  remedy  was  denied.'* 

§  93.  The  same.  "The  question,"  said  Redfield,  J,  "in 
Langdon  v.  Paul^  22  Yt.  210,  is  whether  the  mortgagee,  after 
condition  broken,  can  maintain  an  action  in  the  nature  of  waste 
against  the  mortgageor  in  possession  for  cutting  timber  and  sell- 
ing it,  or  trover  for  the  timber."  There  is  no  English  case 
against  the  action.  In  the  case  of  Ilitchman  v.  Walton.,  4  Mees. 
&  W.,  409,  the  court  of  exchequer  upon  a  full  argument  decided 
the  action  maintainable  on  either  count.  The  mortgageor,  said 
the  court,  has  no  just  grounds  of  complaint.  He  may  at  any  time 
defeat  the  plaintiff's  action  by  paying  the  mortgage  debt  and 
tending  the  costs.     If  he  will  not  do  that,  but  suffer  the  estate  to 

''  Adams  v.  Corriston,  7  Minn.  456. 

'-  It  is  with  feelings  of  extreme  diffidence  that  the  author  has  ven- 
tured to  depart  from  the  examples  of  many  eminent  law  writers  in 
the  orthography  of  this  word.  He  has,  however,  followed  the  legal 
pronunciation  and  the  spelling  of  the  dictionaries,  all  of  which  it  is 
believed  will  be  found  to  agree  therewith. 

"Waterman  and  Wf.  v.  Matteson,  1  Ames,  (4  R.  L)  540. 

■*Stowell  V.  Pike,  2  Greenleaf,  (Me.)  387;  Fernald  v.  Linscott,  6 
Greenleaf,  (Me.)  238;  Gore  v.  Jenness,  19  Me.  (1  App.)  54;  Smith  v. 
Goodwin,  2  Me.  173.  See,  also,  Northampton  Paper  Mill  v.  Ames,  8 
Met.  1;  Yates  v.  Joyce,  11  Johns.  136;  Jackson  v.  Bronson,  19  Johns. 
326;  Hatch  v.  Dwight,  17  Mass.  299;  Van  Pelt  v.  McGraw,  4  Comst.  (N. 
Y.)  110;  Gardner  v.  Heartt,  3  Denio,  233. 

"Langdon  v.  Paul,  22  Vt.  210.  See,  also,  Lull  v.  Matthews,  19  Vt. 
322;  Morey  v.  McGuire,  4  Vt.  327. 

^' Clark  V.  Reyburn,  1  Kan.  28L 


WHEN    AND    FOR    WHAT    IT    LIES.  103 

go  upon  the  mortgage,  the  mortgagee    is    entitled  to  his  judg- 
ment.^" 

"Morey  r.  McGuire,  4  Vt.  327;  Lull  v.  Matthews,  19  Vt.  322.  See, 
also,  Blaney  r.  Bearce,  2  Me.  132;  Frothingham  v.  McKusick,  11  Shep. 
(24  Me.)  403;  Gore  v.  Jenness,  19  Me.  53. 


104 


THE    LAW    OF    REPLEVIN. 


CHAPTER  IV. 

PLAINTIFF  MUST  HAVE  THE  RIGHT  TO  IMMEDIATE  AND  EX- 
CLUSIVE POSSESSION. 


Section. 
Plaintiff  must  have  a  right  to 
iinmei-liate  and  exclusive  pos- 
session     .         .         .        .         .94 
Proof  of  wrongful  taking  not 

necessary  .         .         .         ,95 

The  term  "  property  "  or  "  prop- 
erty in  the  plaintiff,"  does  not 
mean  absolute  ownership       .     96 
Riglit  of  possession  and  owner- 
ship may  be  in  different  persons   97 
Property  of  bailee       .         .         .98 
One  entitled  to  possession  for  a 

special  purpose         .        .         .99 
Illustrations  of  the  rule     .        .  100 

The  same 101 

Ownership  not  necessarily  de- 
termined in  the  action  .  .  102 
Borrower  cannot  set  up  a  title  .  103 
Carrier  cannot  show  title  in  a 
third  party  as  a  defense  to  an 
action  by  the  shipper  or  con- 
signee        104 

Legal  title  will  prevail  over  the 

equitable           .        .        .         .105 
Assignee  in  bankruptcy     .         .  106 
Right  to  present  possession  does 
not  depend  on  former  posses- 
sion   107 

Rule  similar  to  that  in  trespass  108 
Prior  rightful  possession,  when 

sufficient 109 

The  same 110 

Application  of  the  rule      .         .111 

The  same 112 

Rightful  possession  evidence  of 

title 113 

Conflicting  claims  to  possession  114 


Section. 

Possession  must  be  under  a 
claim  of  right  .         .         .         .115 

But  need  not  be  under  a  claim 
of  title.     Finder  of  property  116 

The  same 1!7 

Lien  of  a  finder  for  reward  of- 
fered          

Finder  of  a  note  has  no  right 
to  collect  it      ...         . 

Where  title  is  the  issue,  good 
title  must  be  shown 

Nature  of  the  special  property 
necessary  to  support  replevin  121 

Owner  usually  entitled  to  pos- 
session.    Exceptions 

Liens    .... 

The  same 

The  same 

The  same, 
estray        

Goods  lost  at  sea 

Goods  in  possession  of  one's 
servant     

Contract  for  purchase  of  prop- 
erty does  not  necessarily  con- 
fer right  of  possession    . 

An  officer  levying  process  has 
special  property  and  right  to 
possession         .... 

Possession  of  a  receiptor  to  an 
officer 

An  agent  who  is  responsible  to 
the  owner  has  sufficient  pos- 
session to  support  replevin     . 

Wrongful  seizure  or  sale  by  an 
officer  does  not  affect  owner's 
right 


Taking   up   of   an 


118 


119 


120 


122 
123 
124 
125 

126 
127 

128 


129 


130 


131 


132 


13a 


PLAINTIFF    MUST    HAVE    RIGHT    OF    POSSESSION.        105 

§  94.  Plaintiff  must  have  a  right  to  immediate  and  ex- 
clusive possession.  One  of  the  c-anliual  rules  in  this  action  is, 
that  the  plaintiff  must  in  all  cases  have  a  general  or  special  prop- 
erty in  the  goods  which  he  seeks  to  recover,  with  the  right  to 
their  immediate  and  exclusive  possession  at  the  time  of  the  com- 
mencement of  his  suit.  This  has  been  the  rule  from  the  earliest 
times,  and  is  sustained  by  an  unbroken  current  of  authorities  to 
the  present  day.'  It  is  also  an  established  rule  that  the  i>laintitf, 
having  such  property  and  right  of  possession,  may  sustain  the 
action  without  other  title,  even  against  the  g(;neri^l  nwmer."  In 
Iowa  it  is  said  the  simple  question  to  be  determined  is, "  in  whom 
was  the  right  of  possession  at  the  time  of  the  institution  of  the 
suit."  And  in  this  view  it  is  sufficient  for  the  plaintiff  to  allege 
his  right  of  possession  when  his  suit  was  begun.'     So,  where  the 

'  Britton,  Nichol's  Trans..  Vol.  1,  p.  139;   Gordon  v.  Harper,  7  Durnf 

6  East.  9  and  6;   Smith  v.  Plomer,  15  East,  607;   Jimmerson  v.  Green, 

7  Nebraska,  26;  Meredith  v.  Knott,  34  Geo.  222;  Crocker  t».  Mann,  3 
Mo.  473;  Russell  v.  Minor,  22  Wend.  659;  Mclsaacs  v.  Hobbs,  8  Dana. 
(Ky.)  268;  Hubloun's  Case,  Skinner,  65;  Reese  v.  Harris,  27  Ala. 
306;  Loveday  v.  Mitchell,  Comyns,  247;  Hllger  v.  Edwards,  5  Nev.  84; 
Muggridge  v.  Eveleth,  9  Met.  235;  Kirby  v.  Miller.  4  Cold.  (Tenn.)  3; 
Sager  v.  Plain,  5  Hand.  (N.  Y.)  449;  Bassett  u.  Armstrong,  6  Mirh.  397; 
Barrett  v.  Scrimshaw,  Combe,  477;  Lloyd  v.  Goodwin,  12  S.  &  M.  (Miss.) 
223;  Packard  i'.  Getman,  4  Wend.  613;  Waterman  v.  Robinson.  5  Mass. 
304;  Hallinbake  v.  Fish,  8  Wend.  547;  Fairbank  i'.  Phelps.  22  Pick.  538; 
Forth  V.  Pursley,  82  111.  152;  Ingersoll  v.  Emmerson,  1  Carter,  (Ind.) 
77;  Bradley  v.  Michael,  1  Carter,  (Ind.)  552;  Johnson  v.-  Neale,  6 
Allen,  228;  Barry  v.  O'Brien,  103  Mass.  521;  Pattison  v.  Adams.  7  Hill. 
(N.  Y.)  126;  Wade  v.  Mason,  12  Gray,  335. 

'Crocker  v.  Mann,  3  Mo.  473;  Prater  v.  Frazler,  6  Eng.  (Ark.)  249. 

'Cassell  V.  Western  Stage  Co..  12  Iowa.  48.  But,  see,  and  compare 
Pattison  V.  Adams,  7  Hill.  ( N.  Y.)  126.  "The  plaintiff  must  have  a 
general  or  special  property  in  the  goods,  with  the  right  to  imnu-dlnte 
possession."  Lowry  v.  Hall.  2  W.  &  S.  (Pa.)  133;  Stai>lefonl  r.  White.  1 
Houst.  (Del.)  238;  Lester  v.  McDowell,  18  Pa.  St.  91;  Pioice  r.  St»»vcn8, 
30  Me.  184;  Haythorn  v.  Rushforth,  4  liar.  (19  N.  J.)  160;  Selliert  r. 
M'Henry.  6  Watts,  (Pa.)  302.  "The  action  cannot  be  sustained  by 
one  who  has  not  at  the  time  a  general  or  special  property  In  the  goodK. 
with  the  right  to  their  Immediate  poHsesslon."  Miller  r.  AdHlt.  16 
Wend.  335;  Perloy  r.  Foster,  9  MasH.  114;  Thompson  v.  Button.  11 
Johns.  84;  Dunham  v.  Wy<  koff.  :•.  Wend.  281;  Redman  v.  HendrlckK.  1 
Sandf.  (N.  Y.)  32.  "The  plaintiff  muKt  have  the  excUiKlve  right  to 
the  poHHeHHion  of  the  goods  at  the  time  the  huU  Ih  begun  '  Hunt  t 
ChambcrH.  1  Zab.  (21  N.  J)  623;  KlngHbury  v.  Huchunan.  11  Iowa. 
387;    Noble  v.  Epperly.  6   Port.    (Ind.)    416;    Barrett   r.  Turner.  2  Neb. 


106  THE    LAW    OF    REPLEVIN. 

action  was  for  the  grain  in  a  wareliouse,  the  defendants  were 
l)erniitte(l  to  show  tliat  there  was  grain  in  the  wareliouse  belong- 
ing to  other  jjai'ties,  as  a  defense.*  Therefore,  when  tlie  phiin tiff's 
riglit  to  possession  did  not  aeerne  until  after  his  suit  was  begun, 
he  had  not  at  that  time  the  right  to  possession,  and  could  not 
sustain  the  action.* 

§  95.  Proof  of  wrongful  taking  not  necessary.  An  actual 
wrongful  or  forcible  taking  from  the  plaintitl's  possession  was 
formerly  essential ;  "  but  as  the  law  stands  now,  such  proof  is 
not  requisite.' 

§  96.  The  term  "  property,"  or  "  property  in  the  plaintiff,'' 
does  not  mean  absolute  ownership.  The  term  "  property," 
or  "  property  in  the  plaintiff","  used  in  this  connection,  and  gener- 
ally in  this  action,  does  not  mean  ownershij)  by  absolute  title,  but  a 
right  to  the  possession  or  dominion  over  the  goods,  which  he 
.seeks  to  recover,  at  the  time  he  makes  demand  or  brings  suit.* 
So,  in  case  of  the  defendants,  a  plea  of  property  in  defendant  does 


174;  Dickson  v.  Mathers,  Hempst.  IT.  S.  C.  C.  65.  Possession  for  the 
full  period  of  the  Statute  of  Limitations  invests  the  party  with  title. 
He  may  make  use  of  it  against  the  former  owner,  if  he  assume  to 
retake  the  property.  Hicks  v.  Fluit,  21  Ark.  403.  "  Persons  having 
a  special  property  in  the  goods,  with  the  right  to  immediate  posses- 
sion, may  sustain  the  action,"  Wheeler  v.  McFarland,  10  Wend.  324; 
Branch  v.  Wiseman,  51  Ind.  1;  Tuthill  v.  Wheeler,  6  Barb.  362;  Mead 
V.  Kilday,  2  Watts.  110;  Hamilton  v.  Mitchell,  6  Blackf.  131;  Burton 
V.  Tannehill,  6  Blackf.  470.  The  plaintiff  must  have  a  right  to  delivery 
of  the  goods  at  the  time  the  writ  issues.  Sharp  v.  Whittenhall,  3  Hill, 
576. 

'Nelson  v.  Mclntyre,  1  Bradwell,  (111.)  603.  See,  also,  Gillett  v.  Tre- 
ganza,  6  Wis.  343.  Consult  Rose  t\  Tolly,  15  Wis.  444;  Walpole  v. 
Smith,  4  Blackf.  306;  Presley  v.  Powers,  82  111.  125;  Chinn  v.  Russell, 
2  Blackf.  174;  Clark  v.  Heck,  17  Ind.  (Harrison),  281;  Wheeler  v. 
Train,  3  Pick.  255;  Beckwith  v.  Philleo,  15  Wis.  223;  Appleton  v. 
Barrett,  22  Wis.  569;  Rogers  v.  Arnold,  12  Wend.  30. 

=  Campbell  v.  Williams,  39  Iowa,  646. 

'Ely  V.  Ehle,  3  Comst.  (N.  Y.)  506;  Dame  v.  Dame.  43  N.  H.  37; 
Wright  V.  Armstrong,  Breese,  (111.)  130;  Harwood  v.  Smethurst,  29 
N.  J.  L.  195. 

■  Kerley  v.  Hume,  and  Hume  v.  Gillespie,  3  T.  B.  Mon.  (Ky.)  181. 
Compare  Cobb  v.  Megrath,  36  Geo.  625;  McArthur  v.  Hogan,  Hempst. 
286;  Skinner  v.  Stouse,  4  Mo.  93.     See  cases  cited  in  notes  to  §  94. 

'Johnson  v.  Carnley,  6  Selden,  (N.  Y.)  570;  Sprague  v.  Clark,  41  Vt. 
6. 


PLAINTIFF    MUST    HAVE    RIGHT    OF    POSSESSION.         1U7 

not  mean  absolutG  ownership,  but  a  right  to  present  and  exeki- 
sive  possession.' 

§  i»7.  Right  of  possession  ownership  may  be  in  different 
persons.  The  right  to  the  iniuiediale  pt)ssessioii  iiiav,  some 
limes.  l>e  in  one  i)ersou,  while  tlie  titk^  may  he  in  another,"^ 
as  frequently  arises  in  cases  of  bailment  for  a  special  purpose. 
The  bailee  may  have  the  right  to  the  immediate  possession  by 
virtue  of  a  lien  for  services  bestowed,  or  a  lease  l\)r  an  unex- 
pired time,  and  in  such  case  the  action  can  be  sustained  by  the 
owner  of  the  si)ecial  property  even  against  the  owner  of  the 
title,  upon  showing  right  to  possession  as  against  him  at  the 
time  the  suit  was  begun;"  and  the  plaiutitl's  claim  is  sufti- 
ciently  maintained  if  he  shows  himself  entitled  to  possession 
as  against  the  defendant  at  the  time  the  suit  was  begun.  He 
is  not  obliged  to  show  title  against  the  world.'-  The  statutes 
giving  the  right  to  maintain  replevin,  which  are  substantially 
the  same  in  all  States,  do  not  limit  the  action  to  the  owner 
of  absolute  title,  but  any  o^vne^  of  special  property  with  the 
right  to  possession  is  entitled  to  sustain  the  action  the  same  as 
though  he  held  absolute  title.'" 

§  98.  Property  of  bailee.  As  a  general  rule,  properly  in 
the  hands  of  a  borrower,  trustei^  or  liailee,  for  a  limited  tim« 
or  purpose,  without  fraud  or  wrongful  intent,  is  not  liable  to 
be  taken  upon  process  for  the  collection  of  his  debts,  and  if  so 
taken,  the  real  owner,  entitled  to  innuediate  possession,  may 
s\istain  r<'plevin;  '^  but  cases  often  arise  where  a  bailee  has  an 
interest  in  the  pr(»|M'ity  l»ai!e(l.  wliidi  may  he  seized  and  si»ld 
on  process  against  him.  For  exam|»le.  if  one  hire  a  horse  f(»r 
a  year,  and  afMjuire  the  right  to  exclusive  jjossi'ssion  hir  that 
time,  his  interest  may  Ik'  taken  and  sold  on  execntinii.  In  this 
case,  only  tla^  interest  of  the  liailcc,  not  the  general  jiropcrty, 
wonid   |)ass  by  such  a  sale.''      Where  |tlainliir  Iea.s<'d  (txen   tt» 

•  Hunt  t.  Chanil)frs.  1  Zab.  (21.\.  J.)  (;2(i;  CIcaveK  r.  ILmIhtI.  til  Ml.  172. 

"ChlldH  V.  ChiidH,  13  Wis.  20;  McLaughlin  r.  Platll.  27  Cul.  452. 

"  Bowen  v.  Fcnner,  40  Barb.  38.''j;  RobertH  v.  Wyatt.  2  Taunt.  2C8; 
Burton  v.  Hough.  G  Mod.  334;   Pain  v.  Whlttakcr.  Ry.  &  .Moody,  yj. 

"SummonH  v.  AuHtln.  30  Mo.  30S;  InKorHoll  t'.  EmmerHon,  1  CarlcT, 
(Ind.)   78. 

"  WUllamH  V.  WoHt.  2  Ohio  St.  83. 

"  RoblnHon  v.  Chaniplln,  'J  Iowa.  HI. 

"Caldwell  v.  Cowan.  'J  Ycrg.tTenn.)  262. 


108  THE    LAW    OF    REPLEVIN. 

A.  for  throe  months,  and  they  were  levied  upon  bv  an  attach- 
ment against  A.  before  the  tliree  months  had  expinnl,  the 
court  was  unanimous  that,  inasmuch  as  the  j)hiintilV  had  no 
riglit  to  the  immediate  possession  wlien  the  suit  was  begun, 
he  could  not  recover  in  replevin,  even  though  he  was  the 
general  owner.^'^ 

§  00.  Replevin  lies  at  the  suit  of  one  entitled  to  the 
property  for  a  special  purpose.  When;  a  iKirty  lH)uglit  five 
hundred  head  of  cattle,  and  paid  the  full  purchase  price,  the 
vendors  agreeing  that  the  purchaser  might  select  that  number 
from  their  herd  and  take  immediate  possession,  the  court  in- 
timated in  argument,  that  he  might,  upon  refusal  of  the  vendors 
to  permit  him  to  make  the  selection,  have  replevied  the  whole 
herd,  and  selected  his  live  hundred  therefrom,  and  returned  the 
remainder."  No  matter  what  the  plaintiff's  title  may  be,  he  can- 
not sustain  the  action  against  a  defendant  m^io  had  the  right  of 
possession  at  the  time  the  suit  was  begun."* 

§  100.  Illustrations  of  the  rule.  A  multitude  of  cases  will 
doubtless  suggest  tliemselves  to  the  reader,  where  the  necessities 
of  commerce  and  business  require  that  a  party  entitled  to  present 
possession  of  a  chattel  should  find  a  ready  and  effective  remedy  to 
enforce  his  rights  to  it,  against  all  persons,  even  the  general  owner, 
who  acts  in  disregard  of  them.  The  bailee  of  a  horse  or  ship  for 
a  special  purpose,  or  for  a  stated  time,  the  carrier  Avho  transports 
goods  for  hire,  the  commission  man  who  advances  money  upon 
goods  consigned  to  him,  or  the  warehouse  man  who  stores  them 
at  the  owner's  request,  or  the  mechanic  who  repairs  a  watch  or 
carriage,  each  has  a  special  property  in  the  goods  so  placed  in  his 
possession,  which  is  superior,  until  it  is  lawfully  determined,  to 
the  rights  of  the  owner.  And  it  would  be  disastrous  to  com- 
merce, as  well  as  unjust  to  such  bailee,  if  the  owner  were  per- 
mitted to  retake  possession  of  his  goods  Avithout  first  discharging 

'"Collins  V.  Evans,  15  Pick.  63.  See,  also,  Wheeler  v.  Train,  3  Pick. 
255;  Gordon  v.  Harper,  7  Durnf.  &  East.  10  and  6;  Dixon  v.  Thatcher, 
14  Ark.  144;  Hunt  v.  Strew,  33  Mich.  85;  Smith  v.  Plomer,  15  East.  607; 
Bruce  v.  Westervelt,  2  E.  D.  Smith,  (N.  Y.)  240;  Cox  v.  Hardin,  4  East. 
211;  Forth  v.  Pursley,  82  HI.  152;  Wyman  v.  Dorr,  3  Me.  183;  Temple- 
man's  Case,  10  Mod.  25. 

"  McLaughlin  v.  Piatti,  27  Cal.  452.  See,  also,  Wilson  v.  Royston, 
2   Ark.    315. 

"Rucker  v.  Donovan,  13  Kan.  251. 


PLAINTIFF    MUST    HAVE    RIGHT    OF    POSSESSION.         109 

the  special  lien  of  the  bailee,  and  in  a  lawful  manner  putting  an 
end  to  his  title.  The  law  therefore  recognizes  and  i)rotects  the 
right  of  possession  the  same  as  it  does  absolute  title.'* 

§  101.  The  same.  When  the  plaintiflf  furnished  cloth  upon 
which  to  print  calico,  under  an  agreement  that  the  calico  was  to 
be  sold,  and,  after  deducting  advances,  commissions,  and  cost  of 
the  cloth,  the  balance  was  to  be  paid  to  the  printer,  it  was  held 
that  while  the  goods  were  in  the  hands  of  a  factor  for  sale,  the 
sheriff  could  not  levy  on  them  by  virtue  of  an  attachment  or 
execution  against  the  printer.  The  factor  in  such  case  having  a 
special  property  in  the  goods,  with  possession  and  the  right  of 
possession,  process  against  the  printer  was  regarded  the  same  as 
process  against  any  stranger  ^  So,  when  a  factor  advances  money 
on  goods  stored  with  him,  and  has  a  lien  for  his  advances,  the 
owner  cannot  sustain  replevin  until  he  tenders  the  advances  and 
expenses." 

§  102,  Ownership  not  necessarily  determined  in  this 
action.  The  general  ownership  of  property  is  not  necessarily 
determined  in  replevin,  but  the  right  of  possession  always  is." 
Where  the  plaintiff,  who  was  the  general  owner,  sued  a  railroad 
company  for  goods  whicli  it  refused  to  deliver  unless  the  plaintiff 
signed  a  receipt  stating  tliat  they  were  in  good  order,  the  deten- 
tion was  held  to  be  rightful ;  the  company  had  a  right  to  require 
such  a  receipt;  that  the  plaintiff  liad  a  right  to  examine  tlu; 
goods  at  the  time  and  place  of  delivery,  and  before  he  could  insist 
on  removal." 

§  103.  Borrower  cannot  set  up  title.  A  simple  borrower 
of  property  cannot  set  up  title  in  himself  against  his  bailor;  ho 
must  restore  the  property  before  he  can  assert  ownership  in 
himself.  A  i)erson  claiming  to  be  th(i  owner  cannot  lu;  permitted 
to  employ  such  means  to  obtain  possession  of  goods  and  tbcn  hold 
under  pretense  of  superior  title.  The  act  of  borrowing  is  such  a 
recognition  of  tlie  lender's  title  as  estojis  the  borrower  from  assert- 
ing owncrslijp  until  after  he  has  surrendered  tlu-  gootis"     So, 

"  Williams  V.  West.  2  Ohio  St.  85. 
"Wood  V.  Orser.  25  N.  Y.  348. 

"  TyuB  I'.  RuHt.  34  Oeo.  382.  See,  also,  McCoy  i'.  Cadle.  4  Iowa.  GG8; 
Corbltt  r.  IlelKey.  15  Iowa.  297. 

°  Warner  v.  .MutthewH.  18  111.  83;   RoKers  v.  Arnold,  12  Wend.  30. 
"Skinner  v.  C.  R.  I.  &  P.  R.  R..  12  lowu,  191. 
**  Simpson  V.  Wrenn,  50  111.  221 


110  THE    LAW    OF    REPLEVIN. 

when  property  was  seized  and  tlie  owner  gave  the  officer  a  re- 
ceipt for  it,  and  then  refnsed  to  deliver  it,  he  was  not  allowed  to 
set  np  title  in  himself  as  against  the  officer  when  sned  by  the 
latter.--' 

§  104.  Carrier  cannot  show  title  in  third  party  as  a  de- 
fense to  an  action  by  the  shipper  or  consignee.  Neither 
can  a  carrier  who  acquired  possession  from  a  slii})[)er  c-xcuse  him- 
self for  a  non-delivery  by  showing  title  in  a  third  i)arty  or  in 
himself  Though  a  seizure  of  the  property  upon  a  writ  of  re- 
plevin, or  other  legal  process  against  the  shipper  or  consignee 
might  be  shown,  and  would  constitute  a  good  defense  to  the  car- 
rier in  an  action  against  him  for  the  goods.'*^ 

§  105.  The  legal  title  will  prevail  over  the  equitable.  In 
this  action,  as  in  other  at'tions  at  law,  legal  title  will  in  all  cases 
prevail  over  a  mere  equitable  title,-'  but  the  fact  that  the  plaintiff 
holds  only  as  trustee  for  another,  or  as  guardian  or  executor,  will 
not  debar  him.  So  long  as  he  holds  the  legal  title,  with  the  right 
to  immediate  possession,  he  may  sustain  replevin.^^ 

§  106.  An  assig"nee  in  bankruptcy.  An  assignee  in  bank- 
ruptcy takes  the  title  of  the  bankrupt,  and  is  entitled  to  the 
possession  of  the  goods  the  same  as  the  bankrupt  was  before  the 
bankruptcy.  Proceeding.s,  however,  by  the  assignee  to  recover 
the  property  of  the  bankrupt,  do  not  usually  take  the  form  of  a 
suit  in  replevin,  though  such  a  suit  would  doubtless  be  sustained. 
The  shorter  and  more  effective  course  is  by  application  to  the 
court  in  a  summary  proceeding  for  the  possession  of  the  goods. 
A  bankrupt  has  title  against  all  but  his  assignee.^  When  in  re- 
plevin against  a  sheriff  he  answered  that  he  seized  the  goods  on 
an  attachment  against  one  W.,  and  that  afterwards  proceedings 
in  bankruptcy  Avere  taken  against  W.,  who  was  adjudged  a  bank- 
rupt, and  that  the  assignee  appointed  by  the  court  had  demanded 

"  Brusley  v.  Hamilton,  15  Pick.  40. 

="0.  W.  Ry.  Co.  V.  McComas,  33  HI.  185. 

-^Heyland  v.  Badger,  35  Cal.  404;  Reese  v.  Harris,  27  Ala.  306; 
Killian  v.  Carrol,  13  Ired.   (N.  C.)   431. 

-'  Bergesch  v.  Keevil,  19  Mo.  128.  A  father  who  Is  the  natural 
guardian  for  his  minor  children  has  sufBcient  right  to  the  possession 
of  their  property  to  enable  him  to  sustain  replevin  against  one  who 
wrongfully  takes  or  detains  it.  Smith  v.  Williamson,  1  Har.  &  .J.  (Md.) 
147. 

=»Sawtelle  v.  Rollins,  23  Me.  199;  Fowler  v.  Down,  1  Bos.  &  Pull. 
44;  Hurst  v.  Gwennap,  2  Stark.  306;  Webb.  v.  Fox,  7  Term.  R.  392,  224. 


PLAINTIFF    MUST    HAVE    RIGHT    OF    POSSESSION.         Ill 

and  taken  all  the  goods,  the  answer  was  regarded  as  a  sufficient 
defense  for  the  sheritt".  ■" 

§  107.  Right  to  present  possession,  does  not  depend  on 
former  possession.  A  legal  right,  to  the  po.s.sessiou  of  the  goods 
at  the  time  tlie  suit  was  hegun  has  been  frequently  held  to  be  all 
that  is  essential  tt)  sustain  replevin.  But  what  eireunistiinces  in- 
vest a  party  with  this  right  remains  a  question  unsolved  by  the 
statement,  and  perhaps  no  rule  oan  be  given  which  will  apply  in 
all  cases.  "Where  tlie  [)laintift'  asserts  the  right  to  present  posses- 
sion, his  right  to  recover  does  not  depend  on  the  question  as  to 
whether  he  had  the  possession  at  any  former  time,  but  as  to 
whether  he  had  tlie  right  at  the  time  the  suit  was  begun."  So, 
when  the  plaintiff  is  not  entitled  to  bring  suit  for  the  goods  with- 
out prior  demand  for  the  possession,  and  does  begin  suit  without 
such  demand,  he  is  not  entitled  to  possession  at  the  time  the  suit 
was  begun,  and  cannot  succeed."  Any  fact  showing  that  the 
plaintifif  in  replevin  had  no  right  to  the  immediate  possession 
when  he  began  his  suit  is  a  complete  bar  to  the  action.-" 

^'Bolander  r.  Gentry,  36  Cal.  109. 

"Stoughton  V.  Rappalo.  3  S.  &  R.  562;  Harlan  v.  Harlan,  15  Pa.  St. 
513;  Shearick  v.  Huber,  6  Binn.  3;  Hunt  v.  Strew.  33  Mich.  85;  Herdic 
V.  Young,  55  Pa.  St.  177;  Hatch  v.  FoT.ier.  28  Mich.  210;  Morgner  r. 
Bigg.s,  46  Mo.  65.     Contra,  see  Cobb  v.  Megrath,  3G  Geo.  625. 

"  Alden  v.  Carver,  13  Iowa,  254.  See  Campbell  v.  Williams,  39  Iowa. 
646. 

"Consult  the  following  cases:  Beldon  r.  Laing,  8  Mich.  503;  Clark  v. 
West,  23  Mich.  242;  Davidson  i'.  Waldron,  31  111.  120;  Hill  r.  Freeman, 
3  Cash.  260;  Dixon  v.  Hancock.  4  Cash.  96;  Waterman  v.  Robinson.  5 
Mass.  303;  Fairbank  v.  Phelps,  22  Pick.  538;  Walcott  v.  Pomeroy,  2 
Pick.  121;  Whitwell  v.  Wells.  24  Pick.  25;  Perley  v.  Foster,  9  Mass. 
112;  Ludden  v.  Leavltt,  9  Mass.  104;  Warren  r.  Leland.  9  Mass.  265; 
Mitchell  V.  Roberts,  50  N.  H.  486;  Wallace  r'.  Drown.  17  Ark.  4."»0;  Hill 
V.  Robinson.  16  Ark.  92;  Britt  v.  Aylctt.  6  Eng.  (Ark.)  476;  Wilson 
V.  Royston.  2  Ark.  315;  Dl.\on  r.  Thatcher,  14  Ark.  141;  Parsons  v. 
Boyd,  20  Ala.  117.  Reese  v.  Harris.  27  Ala.  305;  Bryan  r.  Smith.  22 
Ala.  539;  Beazley  v.  Mitchell.  9  Ala.  780;  Parham  v.  Riley.  4  Cold. 
(Tenn.)  5.  Ownership  without  right  to  possession  Is  not  Btiffldont. 
Williams  V.  West.  2  O.  St.  83;  Tison's  Admr.  t>  Bowdon.  8  Fla.  G9;  Neff 
V.  Thompson,  8  Barb.  213;  Johnson  v.  Nealo.  6  Allen.  228;  Brown  r. 
Chlrkopoe  Falls  Co..  16  Conn.  87;  Tomllnson  v.  C^)lllnH.  20  Conn.  365; 
Smith  V.  Orsor,  43  Barb.  187;  .Muggrldge  v.  Eveleth.  9  Mi-t.  23.1;  Wndc 
V.  MuHon.  12  Gray,  335;  Bnwlley  v.  .Michael.  1  Cart.  (Ind.)  552;  Pang- 
burn  V.  Partridge,  7  .John.  ( N.  Y.)  140;  HntchUlsH  v.  McVlckar.  12 
Johns.  403;  Clark  v.  Skinner,  20  John.   {S.  Y  )   46.'. .•  .MarHhull  v.  Davis. 


112  THE    LAW    OF    REPLEVIN. 

§  108.  Rule  similar  to  that  in  trespass.  The  rule,  as  has 
been  shown,  s  .siniilar  to  tliat  in  tivspass  dc  bonis  asporfatis,  and 
this  latter  action  cannot  be  supported  unless  the  j)laintiff  have 
the  actual  or  constructive  possession  of  the  goods,  or  a  general  or 
special  property  in  them,  with  a  right  to  immediate  possession 
when  the  injury  was  committed.  It  is  not  essential  that  the 
l^laintiff  should  ever  have  had  the  actual  possession,  but  he  must 
have  such  a  title  as  will  authorize  him  to  reduce  the  goods  to  his 
possession  when  he  pleases.'' 

§  109.  Prior  rightful  possession  ;  when  sufficient.  It  has 
been  stated  that  prior  rightful  i)ossessioii  of  i)ro])erty,  without 
any  other  title,  is  sufficient  to  sustain  the  action  against  a  wrong- 
doer, such  possession  being  a  good  title  until  a  better  one  be 
shown.  Prior  rightful  possession  is  of  itself /)rt>>?«/'«c<*6'  proof  of 
title,  and  as  against  all,  except  the  owner,  is  sufficient  to  entitle 
the  plaintiff  to  recover.^^  Where  the  plaintiff  is  able  to  show 
that  the  defendant  was  taking  away  property  of  Avhich  he  had 
just  before  been  in  possession,  claiming  to  own  it,  it  is  sufficient, 
at  least,  to  put  the  defendant  upon  proof  of  his  title  or  right  to 
possession,  and  in  the  absence  of  such  jiroof  the  plaintiff  will  be 
entitled  to  recover.''*  Such  recovery  is  permitted  on  the  presump- 
tion of  ownership,  which,  in  the  judgment  of  the  law,  accompanies 
actual  possession,  but  which  may  be  rebutted  by  proof." 

1  Wend.  109;  Hall  v.  Tuttle.  2  Wend.  475;  Dubois  v.  Harcourt,  20  Wend. 
41;  Rogers  v.  Arnold,  12  Wend.  30.  Prima  facie  title  better  than 
possession.  La  Fontaine  v.  Greene,  17  Cal.  296;  Emmons  v.  Dowe,  2 
Wis.  322;  Rose  v.  Tolly,  15  Wis.  443;  Beckwith  v.  Philleo,  15  Wis. 
224;  Sager  v.  Blain,  5  Hand.  (N.  Y.)  449;  Wyman  v.  Dorr,  3  Gr.  (Me.) 
186;  Pierce  v.  Stevens,  30  Me.  (17  Shep.)  184;  Southwick  v.  Smith, 
29  Me.  229;  School  Dist.  No.  5  v.  Lord,  44  Me.  384;  Melton  v.  McDonald, 

2  Mo.  45;  Ramsay  v.  Bancroft,  2  Mo.  151;  Bush  v.  Lyon,  9  Cow.  53; 
W^arner  v.  Hunt,  30  Wis.  201;  Harrison  v.  Mcintosh,  1  Johns.  380; 
Eisendrath  v.  Knauer,  64  111.  402;  Skinner  v.  Stouse,  4  Mo.  93. 

"Putnam  v.  Wyley,  8  Johns.  432;  Cannon  v.  Kinney,  3  Scam.  9; 
Hume  V.  Tufts,  6  Blackf.  136;  Boise  v.  Knox,  10  Met.  40;  Bell  v.  Mona- 
han,  Dudley,  (S.  C.)  38;  Crenshaw  v.  Moore,  10  Geo.  384;  Lunt  v. 
Brown,  13  Maine,  23G;  Heath  v.  West,  8  Foster,  (N.  H.)  101;  Muggridge 
V.  Eveleth,  9  Met.  233.  Contra,  Cobb  v.  Megrath,  36  Geo.  625. 

"Hunt  V.  Chambers,  1  Zab.  (21  N.  J.)  624. 

"Morris  v.  Danielson,  Hill,  168. 

"Moorman  v.  Quick,  20  Ind.  68;  Miller  v.  Jones'  Admr.,  26  Ala.  260; 
Shomo  V.  Caldwell,  21  Ala.  448;  Bayless  v.  Lefaivre,  37  Mo.  119;  Dun- 
can V.  Spear,  11  Wend.  54;  Daniels  v.  Ball,  11  Wend.  58  note;  Smith  v. 


PLAINTIFF    MUST    HAVE    RIGHT    OF    POSSESSION.         113 

§  110.  The  same.  If  the  right  of  the  pluintitt'  is  better  than 
that  of  the  defendant,  whatever  it  may  be  with  regard  to  the  rest 
of  the  world,  he  can  recover.  Possession  is  sufficient  evidence 
of  right  against  every  one  who  is  not  the  true  owner  or  right- 
fully entitled  to  possession  by  virtue  of  some  superior  right.** 

§  111.  Application  of  the  rule.  The  rule  last  stated  recjuires 
some  care  in  ils  ai)plication,  as  cases  are  found  where  the  doc- 
trine seems  to  be  denied.  Thus,  where  the  plaintiff's  title  is 
denied  in  the  pleadings,  naked  proof  of  possession  would  not 
suffice  ;  the  rule  in  sucli  cases  being  that  the  plaintitl'  must  make 
out  his  title  by  proof  ^' — i.  e.,  he  must  recover  on  the  strength  of 
his  own  title,  and  not  on  the  weakness  of  his  adversary's,  in  sui)- 
port  of  whit'h  many  cases  may  be  cited. 

§  112.  The  same.  Where  the  title  is  placed  in  issue,  and 
proof  of  pos.session  is  made  only  as  a  circumstance  tending  to 
show  title,  the  question  of  title,  and  not  mere  possession,  must 
govern,***  the  burden  of  proof,  in  such  cases,  being  on  the  plaintiff.*' 
One  of  the  reasons  for  this  rule  is  found  in  the  fact  that  the  plain- 

Lydick,  42  Mo.  209;  Johnson  v.  Carnley.  10  X.  Y.  (Seld.)  579;  Davis  v. 
Loftin,  6  Tex.  495;  Cook  i'.  Howard,  13  Johns.  276;  Demitk  v.  Chapman, 
11  Johns.  132;  Pangburn  v.  Patridge,  7  Johns.  140;  Cresson  v.  Stout, 
17  Johns.  116;  Wheeler  v.  McFarland,  10  Wend.  322;  Schermerhorn  v. 
Van  Volkenburgh,  11  Johns.  529.  "  Possession  is  sufficient  as  against 
all  persons  not  having  a  better  title."  Bogard  v.  Jones,  9  Humph. 
(Tenn.)  738;  Sawtelle  v.  Rollins,  23  Me.  199;  Morris  v.  Danlelson, 
3  Hill,  168;  IngersoU  v.  Emnierson,  1  Carter,  76.  "Possession  is  a 
right  of  property  against  all  the  world  but  the  owner."  Armory  v. 
Delamire,  1  Str.  505;  Summons  v.  Austin,  36  Mo.  308. 

^' Van  Namee  v.  Bradley,  69  111.  301;  Freshwater  v.  Nichols,  7  Jones, 
(N.  C.)  252.  Possession,  if  recently  before  the  taking,  would  raise 
a  presumption  of  ownership  which,  unless  contradicted,  would  be 
sufficient.  Hunt  v.  Chambers,  1  Zab.  (21  N.  J.)  624;  Morris  r.  Danlel- 
son, 3  Hill,  168;  Smith  v.  Graves.  25  Ark.  461. 

''Gartside  v.  Nixon,  43  Mo.  138;  Gray  v.  Parker,  38  Mo.  160;  Harrison 
V.  M'Intosh,  1  Johns.  380. 

"Hatch  V.  Fowler.  28  .Mich.  206. 

"Patterson  v.  Fowler,  22  Ark.  398;  Simcoke  v.  FredcrickK.  1  Ind. 
54.  In  Broadwater  v.  Darno,  10  .Mo.  285,  the  court  says  that  baitj 
posHeHHioD,  without  other  right,  will  not  support  the  aclloii.  "  When 
the  defendant  has  be<-ome  bankrupt,  and  cannot  dcfond.  it  will  not 
do  away  with  the  necessity  of  proof  on  the  iiurt  of  the  plulntlff." 
Hallett  V.  Fowler,  8  Allen,  93.  In  HiIh  action,  an  In  fjrclmcrit  and 
trover,  the  plalnllff  muHt  maintain  hia  title,  or  full  In  hiM  action. 
DavldHon  v.  Waldron.  31  111.  120. 
8 


114  THE    LAW    OF    REPLEVIN. 

tiff's  title  or  right  of  possession  in  this  action  is  always  in  question. 
Unless  admitted,  it  must  be  maintained  by  a  preponderance  of 
proof.  The  defendant's  title  is  in  no  way  impeached  by  the 
plaintiff's  affidavit,  or  by  the  writ,  if  he  fails  to  estjiblisli  his  title 
at  the  trial." 

§  llo.  Rightful  possession  evidence  of  title.  But,  posses- 
sion of  goods  under  a  claim  of  ownership  is  of  itself  one  of  the 
strongest  evidences  of  title,  and  the  plaintiff  who  has  shown  such 
possession  has  fully  complied  with  the  obligation  to  show  title  ; 
and  if  such  possession  be  shown  to  be  long  continued  and  open, 
under  a  claim  of  ownership,  the  law  will  presume  title;"  and 
naked  claim  of  title,  no  matter  how  formally  pleaded,  ought  not 
to  be  sufficient  to  overcome  such  title.  If,  therefore,  the  plain- 
tiff is  able  to  show  an  undisputed  possession,  under  a  claim  of 
ownership  for  a  length  of  time,  such  possession  alone  will  be  suf- 
ficient to  entitle  him  to  recover  against  a  defendant  who  has 
wrongfully  deprived  him  of  such  possession,  unless  the  latter 
show  something  more  than  a  mere  assertion  of  title  in  his  plead- 
ing." 

§  114.  Conflicting  claims  to  possession.  Where  the  plain, 
tiff  shows  ownership  of  the  property  in  himself,  a  short  pos- 
session by  the  defendant,  without  plaintitt'\s  knowledge  or 
acquiescence,  will  not  amount  to  title  in  the  defendant ;  *'^  and 
Avhen  possession  alone  is  relied  upon  by  plaintiff,  a  prior  pos- 
session of  as  high  a  character  by  the  defendant,  in  the  absence 
of  any  proof  of  ownership,  is  a  better  proof  of  a  right  to  present 
possession  than  subsequent  possession  of  the  plaintiff.** 

§115.  The  possession  must  be  under  a  claim  of  right.  As 
before  stated,  actual  possession  of  property,  when  accompanied 
by  a  claim  of  ownership,  is  prima  facie  evidence  of  such  own- 
ership. And  the  simple  possession  of  chattels,  without  other 
title,  is  regarded  a  sufficient  evidence  of  ownership  to  sustain  an 
action   against   one   who   wrongfully    usurps   possession;"    but 

"Dows  V.  Green,  32  Barb.  490;  Barnes  v.  Bartlett,  15  Pick.  75; 
Bogard  v.  Jones,  9  Humph.  (Tenn.)  739;  Fowler  v.  Down,  1  Bos.  & 
Pull.  44. 

*•  Shomo  V.  Caldwell,  21  Ala.  448:  Robinson  r.  Calloway,  4  Ark.  100; 
Sprague  v.  Clark,  41  Vt.  6;   Dixon  v.  Thatcher.  14  Ark.  141. 

"  Smith  V.  Graves,  25  Ark.  461;  2  Greenleaf  on  Ev.  G37. 

*=  Tompkins  v.  Haile,  3  Wend.  406. 

"  Summons  v.  Austin,  36  Mo.  308. 

*' Davis  V.  Loftin,  6  Tex.  497;  Scott  r.  Elliott,  Phil.  (N.  C.  L.)  104. 


PLAINTIFF    MUST    HAVE    RIGHT    OF    POSSESSION.         115 

this  must  be  possession  by  the  plaintiff  in  his  own  right,  and 
imder  a  claim  of  right,  not  as  servant  of  another.  A  servant  who 
has  the  goods  of  his  master,  and  who  must  surrender  them  on 
demand,  has  no  such  possession  as  will  enable  him  to  sustain  the 
action.**  The  possession  must  also  be  under  a  claim  of  right  in 
the  plaintiff  himself.*'  It  must  also  be  a  riglitful  possession,  ac- 
quired without  force  or  fraud.^ 

§  110.  But  need  not  be  under  a  claim  of  title.  Finder  of 
property.  But  the  possession  need  not  be  accompanied  by  a 
claim  of  absolute  ownership.  The  finder  of  property  has  an  un- 
doubted right  to  retain  possession  against  all  the  world  until  the 
rightful  owner  appear  to  claim  his  property,  or  the  authorities 
lawfully  interfere  to  take  charge  of  it,  as  they  do  in  some  cases  • 
and  if,  while  the  finder  is  in  possession,  looking  for  the  owner, 
another,  by  fraud  or  superior  force,  take  the  property  from  him,^' 
trover  or  replevin  will  undoubtedly  lie,  at  the  suit  of  the  finder. 
So  money  picked  up  on  the  floor  of  a  shop,^'  or  found  in  a  rail- 
road car,"  belongs  to  the  finder,  rather  than  to  the  owner  of  the 
.shop  or  car,  and  he  may  recover  it  or  its  value ; "  but  money  laid 
down  by  the  owner  in  a  shop  or  bank  is  regarded  as  left  in  the 
custody  of  the  owner  of  the  shop  or  bank,  rather  than  in  the  care 
of  a  chance  finder.*^     Where  one  had  a  simple  authority  to  rc- 

*" Mitchell  V.  Hinman,  8  Wend.  667;  Brownell  v.  Manchester,  1  Pick. 
232;  Stanley  v.  Gaylord.  1  Cush.  .536;  Harris  v.  Smith,  3  S.  &  R.  23; 
Bond  V.  Padelford,  13  Mass.  395;  Perley  v.  Foster,  9  Mass.  114;  Sum- 
mons V.  Austin.  36  Mo.  308. 

"Cases  last  cited.     Holliday  v.  Lewis,  15  Mo.  406. 

"Hatch  V.  Fowler,  28  Mich.  205;  Bayless  v.  Lefaivre,  37  Mo.  120. 

-'  Armory  v.  Delamire,  1  Stra.  505. 

"  Bridges  v.  Hawkesworth,  7  E.  L.  &  Eq.  Rep.  424. 

"Tatum  V.  Sharpless,  6  Phila.  18. 

"Consult  Regina  r.  West,  1  Dearsley  C.  C.  402;  People  v.  McOarren, 
17  Wend.  2C0. 

"State  V.  McCann.  19  Mo.  249;  McAvoy  v.  Medina,  11  Allen.  548; 
Lawrence  v.  The  State.  1  Humph.  (Tenn.)  228;  McLaushlin  r.  Waite, 
9  Cow.  670;  McLaughlin  v.  Waite.  5  Wend.  405.  [Abandoned  goods 
become  the  property  of  the  finder,  Burdick  v.  Cheseborough,  94  Ap.  DIv. 
532,  88  N.  Y.  Supp.  13.  Where  logs  are  left  in  a  roll  way  more  than 
twenty  y«'arH  and  have  become  Imbedded  in  sand,  and  grass  and 
bu.shPH  have  grown  over  them,  it  is  a  reasonalile  Inference  that  (hoy 
are  al)iindoned.  Log  OwnfTK  Co.  v.  Hubl)ell,  135  Mich.  65,  97  N.  W. 
157;  —  but  If  the  owners  from  time  to  time  tako  loys  from  the  same 
place,  thiH  Ih  a  cir<iinistanc«'  (o  br-  consldrrcd  In  (ictcrmlnlng  wlicther 
or   not   lluTc   waH   an    Intention    to   abandon;    and    if   the   Io^m   were   so 


116  THE    LAW    OF    RET  LEV  IN. 

cover  animals  Mhii-li  had  strayed,  and  of  which  he  never  luid  pos- 
session, and  for  which  he  Wiis  in  no  way  responsible  to  the  owner 
until  he  should  have  possession,  he  had  no  such  title  as  would 
authorize  him  to  bring  replevin/'* 

§  117.  The  same.  The  plaintiff  bought  an  old  safe,  and  left 
it  for  sale,  with  })ermissi()n  to  the  defendant  to  use  it  until  sold. 
Defendant  afterwards  found  a  package  of  money  in  it.  The 
plaintiff  demanded  the  money,  which  was  refused.  lie  then 
demanded  the  safe  and  contents.  The  safe  was  at  once  deliv- 
ered, and  plaintiff  sued  for  the  money.  Plaintiff  did  not  claim 
any  right  to  the  money  as  against  the  real  oAvner,  but  claimed 
that,  as  against  the  defendant,  he  had  a  better  riglit.  The  plain- 
tiff never  had  possession,  except  unwittingly,  and  it  was  held, 
as  against  him,  the  finder  had  the  superior  right.  The  place  of 
finding  did  not  change  the  rights  of  the  parties."  Perhaps,  how- 
ever, if  the  question  had  been  between  the  original  owner  of  the 
safe  and  the  finder,  the  result  would  have  been  different.  Under 
the  cases  cited  in  the  preceding  section,  the  money  would  probably 
have  been  held  to  be  left  in  the  care  of  the  owner  of  the  safe. 

§  118.  The  lien  of  a  finder  for  reward  offered.  The  finder 
of  property  lost  or  stolen  has  a  lien  on  it  for  the  rcM'ard  offered 
by  the  owner  for  its  recovery.  The  owner,  by  public  offer  of  re- 
ward, constitutes  the  finder  his  bailee,  to  take  and  care  for  the 
property ; '^^  but  a  finder  who  voluntarily  incurs  expense  in  keep- 
ing or  caring  for  property  he  has  found,  unless  necessary  for  its 
preservation,  has  no  right  to  retain  it  for  the  purpose  of  enforc- 
ing his  claim. 


situated  that  there  was  no  danger  of  injury  or  decay,  the  intention  to 
abandon  should  not  be  inferred  from  great  lapse  of  time,  Id.  A 
stranded  raft  is  still  the  property  of  the  owner  until  he  abandons  it, 
and  one  who  converts  the  logs  into  firewood  gains  no  title,  Eastman  v. 
Harris,  4  La.  An.  193;  and  is  not  entitled  to  an  allowance  for  his  labor 
in  making  the  conversion.  Id.  If  goods  are  buried  and  the  place  for- 
gotten and  the  owner  cannot  find  them,  they  become  part  of  the  soil 
and  pass  with  it,  Burdick  v.  Cheseborough,  supra.  A  boat,  hollowed 
from  the  trunk  of  a  tree,  and  supposed  to  be  two  thousand  years  old, 
was  discovered  by  a  tenant,  buried  in  the  soil; — held,  though  not  a 
mineral  and  no  part  of  the  soil,  it  was  the  property  of  the  lord,  Elwes 
V.  Briggs  Gas.  Co.,  L.  R.  33  Ch.  Div.  562.] 

'"Holliday  v.  Lewis,  15  Mo.  406. 

"Durfee  v.  Jones,  11  R.  I.  590. 

^  Cummings  v.  Gann,  52  Pa.  St.  489. 


PLAINTIFF    MUST    HAVE    RIGHT    OF    POSSESSION.        117 

§  119.  Finder  of  a  note  has  no  right  to  collect  it.  Tlu- 
finder  of  a  note,  bill  or  loitery  ticket,  while  he  may  retain  it  as 
against  all  but  the  owiier,  has  no  sueh  right  to  the  money  due  or 
payable  thereon  as  will  authorize  him  to  recover  it  from  the  person 
promising  to  pay.-^' 

§  I'iO.  Where  the  title  is  the  issue,  good  title  must  be 
shown.  A  party  rightfully  in  possession  cannot,  as  against  an 
intruder  or  wrongdoer,  l)e  rt'cpiired  to  show  title  beyond  proof  of 
his  possession  in  the  first  instance  ;  but  when  he  undertakes  to 
show  title,  and  bases  his  right  on  title,  rather  than  possession,  he 
must  show  a  snflficient  title.'"'*^ 

§  121.  The  nature  of  the  special  property  necessary  to 
sustain  replevin.  The  exact  nature  of  the  special  property 
which  will  sustain  the  action  has  not  been  very  accurately  defined. 
Greeuleaf  says :  ''  Special  property,  in  a  strict  sense,  may  be 
said  to  consist  in  the  lawful  custody  of  property  with  a  right  of 
detention  against  the  general  owner.  But  a  lower  degree  of  in- 
terest will  sometimes  suffice  against  a  stranger  or  wrongdoer. 
For  a  wrongdoer  is  not  jjermitted  to  question  the  title  of  one  in 
actual  possession  of  goods  whose  possession  he  has  invaded." 
This  doctrine  was  cited  approvingly  in  an  Illinois  ca-se.*"'-  A  defi- 
nition of  this  special  property  ample  enough  to  embrace  all  cases 
would  be  too  general  to  be  of  great  value  in  any  particular  ca.se. 
A  statement  of  some  of  the  i)rinciples  which  govern  in  i)articular 
cases  will  convey  the  best  idea  of  tlie  rule.  When  one  has  a 
temporary  property,  with  right  of  possession  of  a  chattel,  and 
delivers  it  to  the  general  owner  for  a  s[>ecial  purposi',  lu;  may 
mainhiin  replevin  for  it  after  that  purpose  has  been  accomi)li.shed.'' 

§  122.  General  owner  usually  entitled  to  possession  ;  ex- 
ceptions. As  a  gciH'ia!  iiilf  it  ma\'  lie  said  that  a  rij^lit  of  pn»p- 
erty  carries  with  it  a  right  of  ])o.s.scssion/''  Uiit  the  light  of  tlie 
general  f)wner  to  present  possession  of  jjropcrty  may  be  suspended 
in  a  variety  of  ways  ;  as  when  he  deposits  it  as  security  for  a  loan, 

"McLaughlin  v.  Walte,  r,  Wend.  40.'.;  M<LauKhlln  v.  Wulte.  "J  Cow. 
670;    Kllllan  v.  Carrol,  13  Irod.   (N.  C.)    tUl. 

•"Hatch  V.  Fowler,  28  Mich.  205. 

*'  Greenleaf  on  Evidence,  G37. 

"RlHendrath  v.  Knauer.  04  III.  402. 

"RobertH  t'.  Wyatt,  2  Taunt.  208;  Elsendrath  r.  Knau<r,  04  111  402; 
Rich  V.  Ryder,   lo:,  .M:mH.  :J10. 

"WIlHon  V.  RoyHlon,  2  Ark.  315. 


118  THE    LAW    OF    REPLEVIN. 

or  wliere  lie  delivers  possession  to  a  mechanic  for  repairs,  the 
nifclianic  has  a  right  to  retain  the  property  until  reasonable  or 
ati})ulated  compensation  is  paid.  In  these  and  similar  cases  the 
rights  of  the  gencT-al  owner  await  the  temporary,  but  superior 
right  of  the  bailee,  and  until  these  latter  are  discharged  tlu;  l)ailee, 
and  not  the  general  owner,  will  be  the  proper  plaintiif  in 
replevin.**5 

§  123,  Liens.  In  discussing  the  question  as  to  what  title  or 
what  special  property  in  the  plaintiff  is  sufficient  to  sustain  the 
action  of  replevin,  or  what  title  in  tlie  defendant  will  defeat  it, 
there  is  no  question  of  more  importance  than  the  question  of 
liens.  The  general  principle  may  be  stated  that  when  one  has 
possession  of  goods  with  a  valid  lien  thereon  against  the  owner, 
the  owner's  right  to  possession  is  suspended  vnitil  the  lien  is 
legally  discharged."'' 

§  124.  The  same.  Among  the  most  familiar  instances  of 
liens  are  bailees  for  special  purpose.  The  workman  who  repairs 
a  carriage  or  watch  for  the  owner  has,  unless  some  special  con- 
tract exists,  alien  on  the  article  until  paid  for  his  services."  So 
warehousemen  are  entitled  to  a  lien  on  jiroperty  stored  with  them 
until  their  proper  charges  are  paid/'"  The  taker  up  of  a  sti'ay 
animal,  who  proj)erly  conforms  to  the  law  relating  to  estrays,  has 
a  lien  for  his  lawful  charges.'^'  An  innkeeper  who  entertains  the 
traveler  has  a  lien  for  his  charges  on  the  chattels  of  his  guest  in 
the  inn  or  its  stables.'"  When  a  factor  advances  money  on  goods 
consigned  to  his  care  or  for  sale  on  commission,  he  has  a  lien,  or 
qualified  right  to  possession  of  the  goods,  and  may  retain  them 
until  his  lien  is  satisfied."     In  these  and  other  kindred  cases, 

^Wallace  v.  Brown,  17  Ark.  450. 

"^  Moore  v.  Hitchcock,  4  Wend.  293;  Everett  v.  Coffin,  6  Wend.  603; 
Bush  V.  Lyon,  9  Cow.  52;  Jones  v.  Sinclair,  2  N.  H.  319;  M'Combie  v. 
Davis,  7  East.  5;  Wilbraham  v.  Snow,  2  Saund.  47. 

"' Hollingsworth  v.  Dow,  19  Pick,  228;  Morgan  v.  Congdon,  4  Comst. 
552;  Mclntyre  v.  Carver,  2  Watts  &  Serg.  932;  Curtis  v.  Jones,  3  Denio, 
590. 

"Piatt  V.  Hibbard,    Cow.  497;  Tyus  v.  Rust,  34  Geo.  328. 

"Phelan  v.  Bonham,  4  Eng.  (Ark.)  389;  Bayless  v.  Lefaivre,  37  Mo. 
119. 

"Thompson  v.  Lacy,  3  Barn.  &  Aid.  287;  Turrill  v.  Crawley,  13  Ad. 
&  El.  197;   Sunbolf  v.  Alford.  3  Mees.  &  W.  248. 

"Wood  V.  Orser,  25  N.  Y.  349;  Brownell  v.  Carnley,  3  Duer,  (N.  Y.) 
9;  Holbrook  v.  Wight,  24  Wend.  169. 


PLAINTIFF    MUST    HAVE    RIGHT    OF    POSSESSION.         119 

when  a  lien  exists  the  right  of  the  general  owner  is  subservient 
to  the  lien,  and  before  he  can  be  permitted  to  assert  his  title  he 
must  show  that  the  lien  has  been  discharged. 

§  125.  The  same.  When  one  has  a  lien  on  property  which  is 
forcibly  and  clandestinely  taken  from  him,  he  can  sustain  re- 
plevin for  its  recovery.  Thus,  a  hotel  keeper  has  a  lien  on  his 
guest's  horses ;  and  in  some  States  a  livery  stable  keeper  lias  a 
lien  on  horses  boarded  with  him ;  and  when  he  keeps  several  for 
the  same  owner  the  lien  is  not  against  each  horse,  but  is  against, 
the  owner  and  upon  all  the  horses,  and  one  may  be  detained  for 
the  keeping  of  all."- 

§  126.  The  same.  Taking  up  of  an  estray.  Wb.en  a 
person  has  taken  up  an  estray,  and  advertised  it  according  to 
law,  he  has  a  lien  upon  and  a  right  to  retain  it  until  the  lien  is 
satisfied,  and  may  maintain  replevin  against  the  owner  wlio  takes 
it«away  ^v1thout  paying  the  lawful  charges."  But  this  lien  is 
given  by  statute.  The  owner  cannot  be  deprived  of  his  property, 
or  the  riglit  to  immediate  possession,  except  by  a  proceeding  in 
accordance  with  the  statute.  A  party,  therefore,  who  asserts 
title  under  a  law  respecting  the  taking  up  of  estrays,  must  comply 
strictly  with  the  provisions  of  tlie  statute,  or  his  lien  will  be  lost.'* 
The  taker  up  of  an  estray,  who  duly  complies  with  the  law  witli 
reference  thereto,  has  an  unquestionable  lien  upon  the  property 
until  his  legal  charges  are  paid.  And,  to  the  extent  of  his  lien, 
he  has  a  special  propert}'  in  the  animal  t;iken  up,  and  may  assert 
it,  it  would  seem,  against  the  owner  who  takes  the  property  with- 
out complying  with  the  law."'" 

"Young  V.  Kimball.  23  Pa.  St.  195. 

■'Ford  V.  Ford.  3  Wis.  399;    Bayless  v.  Lefaivre.  37  Mo.  119. 

■'Brown  v.  Smith.  1  N.  H.  3C;   .Morse  v.  Reed.  28  Me.  481. 

"Ford  V.  Ford.  3  Wis.  399;  Morse  v.  Reed.  28  Me.  481;  Barnes  v. 
Tannehill,  7  Blackf.  C06;  Bayless  v.  Lefaivre.  37  Mo.  119;  Hendricks  v. 
Decker.  35  Barb.  298. 


NrrTK  V.  Lien,  How  Acquired. — A  lien  exists  only  by  virtue  of  a  con- 
traft.  express  or  implied,  or  by  forro  of  law;  one  to  whom  a  rhattel  Ih 
pledged  as  security  for  a  particular  debt  has  no  lien  upon  It  to  siTure 
another  demand,  Jarvis  Adnir.  v.  Rogers,  15  .MasH.  389.  The  law  gives 
no  lien  for  the  purchaK*?  mom-y  of  chattels  without  an  expresH  agrccnicnt, 
Klngsley  v.  Mcdrfw,  48  Neb.  812.  (17  .N.  W.  787;  nor  for  nuTc  manual 
labor    in    the   cleansing   or    improving   an    article;    on<'    who    has    con- 


120  Tin-:    LAW    OF    REPLEVIN. 

tracted   to  cipnn    rarpt'ts  and    ro-Iay    them,   cannot    dotain    tlicm    after 
demand.  Nfttloton  r.  Jackson.  30  Mo.  Ap.  135. 

The  purchaser  of  an  animal  jointly  with  another,  and  who  pays  the 
whole  purchase  price,  has  a  Hen  upon  the  interest  of  his  associate  for 
re-Jmbursement.  and  it  seems  may  maintain  replevin,  Wooley  v.  Bell, 
Tex.  Civ.  Ap.  6S  S.  W.  71.  And  where  one  tenant  in  common  of  an 
animal  becomes  sole  owner,  by  reason  of  the  other's  defaults,  he  is 
not  permitted  to  recover  it  In  replevin,  without  first  satisfying  his 
share  of  the  other's  disbursements  for  its  necessary  sustenance.  Ellis 
r.  Simpklns.  81  Mich.  1,  45  N.  W.  G46.  Rendering  voluntary  service 
with  success,  to  rescue  goods  from  the  perils  of  the  seas,  gives  a  lien 
for  reasonable  compensation;  the  party  is  entitled  to  possession  until 
his  claim  is  satisfied.  Central  Co.  v.  Mears,  89  Ap.  Div.  452.  85  N.  Y. 
Stip.  795.  The  unlawful  detention  of  another's  property  will  not 
found  a  lien.  Busch  v.  Fisher.  89  Mich.  19.2,  50  N.  W.  788.  A  trespasser, 
however  Innocent,  acquires  no  property  in  logs  cut  upon  the  land 
of  another,  nor  a  Hen  for  the  expense  of  cutting.  Id.  An  assignee  in 
Insolvency  advanced  freight  on  goods  which  the  assignor  had  obtained 
by  fraud;  he  acquired  no  lien  for  the  freight.  Lee  v.  Simmons,  65 
Wis.  523.  27  N.  W.  174.  An  agent  without  authority  accepted  goods 
for  storage,  agreeing  that  no  charge  should  be  made;  it  was  held 
that  the  principal  might  disavow  the  act  and  require  the  owner  to 
remove  the  goods,  but.  permitting  them  to  remain  without  any  dis- 
avowal of  this  agreement,  he  cannot  assert  a  lien  for  storage.  Knight 
r.  Beckwlth  Co.,  6  Wyo.  500,  46  Pac.  1094.  A  mechanic  has  no  lien 
upon  personalty  for  repairs  done  upon  it  when  he  has  agreed  to  make 
such  repairs  in  consideration  of  other  employment  for  which  he  is 
paid.  Stlckney  r.  Allen.  10  Gray.  352.  A  real  estate  broker  has  no 
lien  upon  moneys  deposited  with  him  by  a  client,  with  which  to 
purcha.so  lands.  Robinson  v.  Stuart,  97  Mich.  454.  56  N.  W.  853.  An 
agister's  Hen  Is  a  special  property.  Schrandt  v.  Young,  62  Neb.  254,  86 
N.  W.  1085.  It  exists  only  by  statute,  Sharp  v.  Johnson,  38  Ore.  246. 
63  Pac.  485.  All  the  conditions  of  the  statute  are  essential,  and  com- 
pliance therewith  must  be  shown.  Id.  One  who  sells  feed  to  the  owner 
of  livestock  Is  not  an  agister  and  has  no  Hen  upon  the  stock,  Howard 
Co.  V.  National  Bank,  93  Ills.  Ap.  473;  and  a  statute  that  "  any  agister 
or  herder  of  cattle  to  whom  any  horses  shall  be  intrusted,  and  a 
contract  for  their  keeping  entered  into  between  the  parties,  shall  have 
a  Hen.  etc.,"  does  not  give  a  lien  to  a  mere  herdsman  or  vaquero  hired 
to  drive  cattle,  no  contract  being  made  with  him  for  their  keeping. 
Underwood  v.  Blrdsall.  6  Mont.  142,  9  Pac.  922.  But  under  the  same 
statute  It  was  held  that  a  sheriff  assuming  possession  of  mortgaged 
animals,  at  request  of  the  mortgagee,  may  cause  them  to  be  stabled 
and  fed,  and  so  confer  a  Hen  In  favor  of  the  stable  keeper.  It  appears 
that  the  sheriff  was  in  the  performance  of  an  official  duty  and  acting 
under  a  statutory  power.  Vose  r.  "Whitney,  7  Mont.  385,  16  Pac.  846. 
A  chattel  mortgage  of  a  horse  authorized  the  mortgagee  In  case  of 
default  to  take  Immediate  possession,  sell,  and   pay  the  amount  due. 


PLAINTIFF    MUST    HAVE    RIGHT    CF    POSSESSION.         1_1 

"  with  all  reasonable  costs  of  taking,  keeping,  advertising  and  selling;  " 
The  mortgagee  directed  Martin  to  take  the  animal  and  do  all  things 
necessary  to  foreclose  the  mortgage.  Martin  accordingly  took  it  into 
his  possession  and  fed  and  maintained  it  while  advertising  the  sale. 
The  mortgage  debt  was  afterwards  paid,  but  no  adjustment  was  made 
of  Martin's  bill  for  the  keep  of  the  horse.  Held  that  the  horse  while 
fed  and  maintained  by  Martin,  was  still  in  possession  of  the  mort- 
gagee, and  that  while  he  was  entitled  to  retain  it  until  the  costs  of 
the  maintainance  was  discharged,  Martin  acquired  no  lien  for  his 
bill,  though  the  statute  provided  that  "  when  any  person  shall  procure 
any  other  person  to  feed  any  kind  of  livestock  it  shall  be  unlawful 
for  him  to  gain  possession  of  the  same  by  legal  process  until  he  is 
paid  or  tendered  the  contract  price  or  reasonable  compensation,"  Hale 
I'.  Wigton,  20  Neb.  83,  29  N.  W.  177.  A  statute  that  one  who  "  shall 
feed  any  horse,  cattle,  etc.,  or  bestow  any  labor,  care  or  attention  on 
the  same  at  the  request  of  the  owner,"  shall  have  a  lien,  does  not  give 
a  lien  for  training  a  race  horse,  or  for  jockey  fees,  costs  of  shoeing, 
entrance  money  or  the  like.  Sharp  v.  Johnson,  supra.  Nor  has  one 
of  several  tenants  in  common  a  lien  for  the  sustenance  of  an  animal 
which  is  the  common  property.  Id.  Auld  v.  Travis,  5  Colo.  Ap.  535, 
39  Pac.  357.  The  statute  that  "  livery  stable  keepers  and  other  persons 
keeping  any  horse  at  livery,  or  pasturing  or  boarding  the  same  for 
hire  under  an  agreement  with  the  owner,"  shall  have  a  lien,  etc., 
has  no  application  to  the  case  whei'e  one  takes  charge  of  a  race  horse 
and  conveys  it  about  the  country  to  different  races,  under  an  agreement 
that  he  is  to  have  one-half  the  earnings,  the  owner  paying  all  expenses, 
Armitage  v.  Mace,  96  N.  Y.  538.  And  where  the  trainer  agrees  to 
furnish  feed  for  the  animals  they  are  not  subject  to  a  lien  for  feed 
purchased  by  him,  Anderson  v.  Heile,  23  Ky.  L.  Rep.  1115,  64  S.  W. 
849.  A  chattel  mortgage  is  ordinarily  superior  to  an  agister's  lien 
accrued  subsequent  to  its  record,  Woodard  v.  Myers,  15  Ind.  Ap.  42, 
43  N.  E.  573,  Hanch  v.  Ripley.  127  Ind.  151,  26  N.  E.  70. 

But  where  the  animal  was  too  young  to  be  worked,  the  mortgageor 
was  insolvent,  and  the  mortgagee,  knowing  that  the  animal  was  being 
fed  and  sustained,  failed  to  demand  it,  the  agister  was  allowed  a  lien 
superior  to  the  mortgage.  It  was  held  that  the  mortgagee  in  effect 
waived  his  right  in  favor  of  the  agister,  Woodard  v.  Myers,  supra. 
And  one  who  stands  by  and  permits  another  under  claim  of  right 
to  pay  duties  upon  his  goods,  thcrcljy  concedes  to  the  latter  an  equi- 
table lien  under  which  he  may  defend  rejjlevin,  P^'owler  ty.  Parsons,  143 
Mass.  401.  9  N.  E.  799. 

How  Waived  or  Lost. — One  who  asserts  title  to  goods,  concealing 
his  lien,  thereby  loses  the  lien  thereon,  Mexal  v.  Dearborn.  12  Gray. 
336;  Hudson  v.  Swan.  83  N.  Y.  552;  Gullle  v.  Wong  Fook.  13  Ore.  577. 
11   Pac.  277;   George  v.  Hewlett.  70  Miss.   1.  12  So.  855. 

Hut  oth«TwlKo,  If  in  the  Kaine  pleading  the  (li'fcndiint  usHorts  his 
lion.  Summervlile  r.  S(0(  kton  (.'o..  142  Calif.  529,  76  Pac.  i;43.  A  pledgee 
who  HurrondcpH  the  goodB  to  the  Bheriff  and    punhaKi-H   thcni   umbr  ii 


ll'i  THE    LAW    OP    KEI'LHVIN. 

void  sale,  forfeits  his  lion.  Latta  r.  Tutton.  122  Calif.  279,  54  Pac.  844. 
If  a  carrier  nei^llKeiitly  i)ermits  the  goods  in  his  hands  to  be  damaged 
to  an  amount  equalling  the  frieght,  his  lien  is  gone,  Miami  Co.  v.  Port 
Royal  Co..  47  S.  C.  324.  25  S.  E.  153.  And  demand  of  an  excessive 
sum  forfeits  the  lien,  even  for  the  amount  justly  due,  Stephenson  v. 
LIchtensteln.  N.  .1.  L..  59  Atl.  1033;  Brown  v.  Dempsey,  95  Pa.  St.  243; 
but  see  Hall  r.  Tittabawassee  Co..  51  Mich.  377,  16  N.  W.  770.  And  so 
an  tinquaiiflod  refusal  where  demand  is  made  by  the  true  owner;  the 
lienor  cannot  afterwards  assert  his  lien,  Thompson  v.  Rose,  16  Conn. 
71:  Keep  Co.  v.  Moore.  11  Lea  285;  Judah  v.  Kemp,  2  J.  Cas.  411; 
Holbrook  v.  Wight.  24  Wend.  169;  George  v.  Hewlett,  supra.  Contra, 
Fowler  j'.  Parsons,  supra.  And  where  all  the  facts  were  stated  and 
the  lien  was  known  to  the  plaintiff  and  his  agent  at  the  time  of  the 
demand,  it  was  held  there  was  no  waiver,  even  though  the  lien  was 
not  distinctly  asserted,  Everett  v.  Coffin,  6  Wend.  603;  and  see  Fowler 
V.  Parsons,  supra.  No  tender  of  the  sum  due  need  be  made  where  de- 
mand is  refused  on  other  grounds.  Wall  v.  Demitkiewicz,  9  Ap.  D.  C. 
109.  contra.  Fowler  v.  Parsons,  supra..  But  mere  silence  when  the 
goods  are  demanded  is  not  a  waiver  of  the  lien.  Lytle  v.  Crura,  50 
la.   37. 

A  lien  Is  extinguished  by  a  tender  of  the  amount  due,  .Tones  v. 
Rahilly.  16  Minn.  320.  And  if  the  lien  holder  makes  no  objection  to 
the  amount  tendered  he  is  deemed  to  assent  to  it,  and  the  lien  is 
discharged,  even  though  the  amount  is  less  than  the  sum  due,  Latta  v. 
Tutton.  supra.  If  the  lienor  permits  the  thing  upon  which  he  has  a 
lien  to  pass  to  the  possession  and  control  of  another,  though  occupy- 
ing the  same  place  of  business  with  him,  he  loses  his  lien,  Stickney  v. 
Allen.  10  Gray,  352.  A  lien  is  preserved  only  while  possession  re- 
mains. Latta  V.  Tutton.  supra:  Pallen  v.  Bogy,  78  Mo.  Ap.  88,  Papineau 
V.  Wentworth.  136  Mass.  543;  Thompson  v.  Dolliver,  132  Mass.  103; 
and  Is  not  regained  by  resumption  of  possession,  except  in  case  of 
fraud  or  possibly  mistake,  Sensenbrenner  v.  Mathews,  48  Wis.  250,  3 
N.  W.  599.  The  landlord,  who  permits  the  tenant's  produce  to  be  re- 
moved from  the  demised  premises  loses  the  lien  given  by  statute,  Brow- 
nell  r.  Twyman.  68  Ills.  Ap.  67.  The  affidavit  that  the  defendant  detains 
the  goods  will  not  be  received  as  an  admission  of  possession  in  the 
landlord,  so  as  to  support  his  lien.  Id. 

Deposit  of  a  thing  with  another  temporarily,  is  not  a  waiver  of  the 
lien,  Pallen  v.  Bogy,  supra;  Ludden  v.  The  Buffalo  Co.,  22  Ills.  Ap.  415. 
As  where  stable  man  permits  a  horse  to  be  taken  to  the  track  to  be 
raced,  Hartman  v.  Kerwin,  101  Pa.  St.  338;  or  where  a  wheelwright 
delivers  a  wagon,  on  which  he  has  been  employed  to  make  repairs, 
to  a  painter,  in  order  that  he. may  complete  the  work  of  renovation, 
Ruppert  r.  Zang.  N.  J.  L.  62  Atl.  998.  But  if  the  lien  holder  pledge 
the  goods  as  his  own,  or  falsely  represent  to  the  pledgee  the  amount 
of  his  lien,  his  right  in  gone.  Ludden  v.  Buffalo  Co.  supra.  Surrender 
of  a  part  of  the  goods  does  not  destroy  the  lien  upon  the  remainder;  the 
Hen  for  the  whole  of  the  agister's  demand  extends  to  all  of  the  goods 


PLAINTIFF    MUST    HAVE    RIGHT    OF    POSSESSION.         123 

remaining  in  his  custody,  George  R.  Barse  Co.  v.  Adams,  2  Ind.  T. 
119,  48  S.  W.  1023.  An  act  done  to  preserve  the  property  in  order  that 
it  may  remain  subject  to  the  lien,  which  is  not  in  antagonism  to  the 
lien,  and  is  equally  beneficial  to  those  having  subordinate  rights,  is 
not  a  conversion,  Summerville  v.  Stockton  Co.,  142  Calif.  529,  76  Pac. 
243.  One  who  manufacturers  lumber  from  logs  furnished  by  another 
has  a  lien  upon  all  the  lumber  in  his  possession,  at  any  time,  for  the 
balance  due  him;  permitting  the  other  party  to  pile  the  lumber  for 
its  better  preservation  on  the  mill  lot.  is  not  a  loss  of  the  possession 
nor  of  the  lien,  Holderraan  v.  Manier,  104  Ind.  118.  3  N.  E.  811.  Waiver 
of  a  lien  in  favor  of  one  party  does  not  avail  a  different  party,  Farr  v. 
Kilgour,  117  Mich.  227,  75  N.  W.  457.  The  lien  upon  the  crop  given 
by  statute  to  the  landlord  as  security  for  the  rent,  does  not  prohibit  the 
tenant  from  alienating  his  share  of  the  crop;  nor  does  his  transfer 
displace  the  Hen,  Cunningham  v.  Baker,  84  Ind.  597.  And  one  who 
is  entitled  by  verbal  agreement  to  a  Hen  upon  a  growing  crop,  and 
to  possession  on  default  made  in  the  payment  of  his  demand,  is  not 
affected  by  notice  of  a  subsequent  mortgage  or  charge  upon  the  same 
crop,  Gafford  v.  Stearns,  51  Ala.  434.  An  assignee  of  promissory 
notes  given  for  rent  of  a  plantation,  which  by  statute  are  a  first  lien 
upon  the  crop,  cannot  sustain  replevin  of  the  crop  as  against  one,  who 
at  his  instance,  has  advanced  money  or  supplies  to  the  tenant,  in 
ignorance  of  the  notes  and  their  assignment,  on  the  faith  of  a  waiver 
of  the  lien  by  the  landlord.  Dreyfuss  v.  Gage,  84  Miss.  219,  36  So.  248. 
In  Florida  by  statute  the  lien  of  a  mechanic  for  repairs  upon  personal 
property  confers  a  right  to  retain  possession  for  three  montlis  and 
no  longer.  At  the  end  of  that  period,  the  owner  upon  demand  may 
replevy  the  article,  even  though,  pursuant  to  a  statute,  a  bill  in  equity 
is  pending  to  enforce  the  lien.  Ocala  Company  v.  Lester,  Fla.  38  So.  51. 
Right  to  Possession. — One  who  detains  goods  in  pursuance  of  a 
lien,  is  not  liable  in  trover  therefor,  without  discharge  or  tender  of 
the  amount  of  the  lien,  Gunning  v.  Quinn,  63  N.  Y.  St.  209,  30  N.  Y. 
Sup.  1015;  Brown  v.  Dempsey,  95  Pa.  St.  243;  Fowler  v.  Parsons,  143 
Mass.  401,  9  N.  E.  799.  And  where  by  statute  the  goods  of  the  tenant 
are  pledged  to  the  landlord  as  security  for  his  rent,  the  tenant  cannot 
remove  them  without  the  landowner's  consent.  The  opinion  of  the 
tenant  that  enough  remains  to  make  the  rent  secure  is  immaterial. 
The  question  is  for  the  landowner,  and  not  for  the  tenant  to  decide. 
Millot  V.  Conrad,  112  La.  928,  36  S.  807.  Under  the  statute  of  Michigan, 
companies  operating  booms  ui)on  the  natural  streams  of  the  state 
have  a  Hen  upon  the  logs  which  they  drive,  for  their  services  in  driv- 
ing, sorting,  and  delivering  the  logs  to  the  owners;  their  charges  are 
required  tf>  be  reasonable.  A  log  owner.  In  order  to  maintain  re- 
plevin, muHt  tender  what  is  reasonable.  The  boom  company  may 
properly  refer  to  its  cKtablished  and  uniform  schedule  of  rates,  and. 
acting  fairly  and  In  good  faith  is  not  deprived  of  its  lion  by  d(>ta!n- 
Ing  more  logs  than  the  amount  necessary  to  secure  it,  Hall  v.  Tittaba- 
wassee  Co.,  51  Mich.  377,  16  N.  W.  770.     The  landlord's  Hen  on  growing 


124  THE    LAW    OP    REPLEVIN. 

crops  does  not  invest  him  with  the  title,  either  genera!  or  special; 
he  Is  not  entitled  to  the  possession  and  cannot  maintain  reQTevin, 
Travers  v.  Cook.  42  Ills.  Ap.  580.  A  mere  lien  without  possession,  i8  no 
defense  against  the  action  of  one  holding  the  legal  title,  Alabama  Stale 
Bank  v.  Barnes.  82  Ala.  607.  2  So.  349.  Where  two  are  entitled  to  a 
lien  and  one  of  them  Is  made  sole  defendant  in  an  action  of  replevin 
for  the  goods,  he  may  assert  the  lien,  Holderman  v.  Manier,  104  Ind. 
lis.  3  N.  E.  811.  If  one  fortuitously  come  into  possession  of  goods 
which  are  subject  to  a  lien.  c.  (j.,  an  executor,  he  is  entitled  to  have  the 
Hen  ascertained  and  discharge  it.  Fallen  v.  Bogy,  78  Mo.  Ap.  88. 

Knforcemcnt  of  Lien. — One  who  claims  under  the  sale  of  goods  to 
enforce  a  lien  pursuant  to  the  statute,  authorizing  such  sale,  must 
show  a  sale  In  accordance  with  the  statute,  Greenawalt  v.  Wilson,  52 
Kans.  109,  34  Pac.  403.  A  landlord's  lien  given  by  statute,  cannot  be 
enforced  by  forcible  seizure  of  the  crop,  the  landlord  must  resort  to 
legal  methods.  Cunningham  r.  Baker,  84  Ind.  597.  Whoever  claims  a 
lion  under  statute  must  conform  to  the  statute,  Eales  v.  Francis,  115 
Mich.  (i36,  73  N.  W.  894.  If,  in  a  conditional  sale,  the  vendor  reserves 
a  lien  on  the  goods,  as  well  as  the  title,  and  a  purchaser  from  the 
original  vendee  refuse  to  deliver  them  on  demand,  the  vendor  may  re- 
cover full  damages  for  the  conversion  and  may  attach  the  goods  and 
hold  them  under  his  original  lien.  Hill  v.  Larro,  53  Vt.  629. 

Several  Lieiis. — In  replevin  against  several  they  will  not  be  per- 
mitted to  assert  separate  and  distinct  liens  upon  the  chattels.  Under- 
wood V.  Birdsell,  6  Mont.  "142,  9  Pac.  922. 

Order  and  Priority. — An  execution  lien  which,  by  the  statute  dates 
from  the  delivery  of  the  writ  to  the  officer,  is  superior  to  a  lien  ac- 
quired by  a  mechanic  subsequent  to  the  delivery  of  the  writ  and  before 
its  levy,  McCrisaken  v.  Osweiler.  70  Ind.  131.  The  lien  of  a  chattel 
mortgage  duly  recorded  seems  to  take  precedence  of  the  lien  of  an 
agister,  dependent  upon  subsequent  contract  with  the  mortgagor, 
Central  Bank  r.    Brecheisen,   65   Kans.  807,  70  Pac.  895. 

NoTK  VI.  Distraint  damage  feasant. — Where,  as  in  some  o£  the 
states,  the  landowner  is  permitted  to  take  up  or  distrain,  trespass- 
ing animals;  the  animal  cannot  be  replevied  without  tender  the 
damages  committed  by  it.  and  compensation  for  its  keep,  Shroaf  v. 
Allen,  12  Neb.  110,  10  N.  W.  551.  Animals  trespassing  upon  uninclosed 
premises  are  not  liable  to  distraint  unless  it  affirmatively  appears 
that  they  have  done  an  actual  and  perceptible  injury  estimable  in 
dollars  and  cents.  Aria  Company  v.  Burk,  Neb.  102  N.  W.  74.  The 
party  distraining  must  comply  strictly  with  the  provisions  of  the 
statue,  Hanscom  v.  Burmood,  35  Neb.  504,  53  N.  W.  371.  If  the  owner 
accepts  a  verbal  notice,  where  the  statute  requires  notice  in  writing, 
It  seems  this  will  suffice,  Id.;  or  if  he  has  actual  notice  of  the  distraint, 
Schroaf  v.  Allen,  supra.  Every  statute  of  this  character  is  to  be 
strictly  construed  and  strictly  pursued  by  those  who  claim  the  benefit 
of  it.  Haffner  v.  Barnard,  123  Ind.  429,  24  N.  E.  152.  Where  the 
statute    requires    that    the    taker-up    shall    within    twenty-four    hours 


PLAINTIFF    MUST    HAVE    RIGHT    OF    POSSESSION.         125 

cause  the  damages  done  to  be  appraised  by  two  disinterested  free- 
holders, and  a  certificate  thereof  made,  and  notice  given  to  the  owner 
of  the  fact  of  the  trespass  and  of  the  damages  assessed,  a  verdict 
that  the  taker-up  gave  notice  to  the  owner,  without  showing  its  con- 
tents, entitles  the  owner  to  a  judgment  for  possession.  Id.  If  the 
distrainor  demands  damages  where  he  has  sustained  no  damage,  he 
can  assert  no  lien  upon  the  animal,  even  for  a  lawful  charge,  Jones  v. 
Clouser,  114  Ind.  387,  16  N.  E.  797. 

In  Vermont  the  distrainor  has  no  right  to  impound  the  animal  on 
his  own  premises,  if  there  is  a  public  pound  in  the  town,  Rowe  v. 
Hicks,  58  Vt.  18,  4  Atl.  563.  The  distrainor  is  allowed  twenty-four 
hours  to  give  notice  to  the  owner,  and  this  period  is  computed  from 
the  time  the  cattle  are  actually  impounded;  merely  placing  them  in 
a  pasture*,  without  any  intent  to  there  impound  them,  is  not  an  im- 
pounding, even  though  there  be  no  public  pound  in  the  town,  Howard 
V.  Bartlett,  70  Vt.  314,  40  Atl.  825.  The  duty  of  the  pound  keeper  to 
provide  food  and  drink  for  animals  distraint  damage  feasant,  must  be 
strictly  performed;  it  is  not  excused  by  the  pound  keeper's  absence 
from  home,  he  must  provide  a  servant  to  perform  his  duties  during 
his  absence,  Farrar  v.  Bell,  73  Vt.  342,  50  Atl.  1107;  and  so  as  to  the 
duty  of  advertisement.  Id.  The  statute  allowed  the  owner  twenty-four 
hours  after  notice  of  the  distress  to  move  the  animals  and  make  pay- 
ment of  the  damages,  the  amount  of  the  damages  was  required  to  be 
stated  in  the  notice;  no  provision  was  made  for  compensating  the 
distrainor  for  sustaining  the  animals.  Held  no  such  allowance  could 
be  demanded,  Allen  v.  Van  Ostrand,  19  Neb.  578,  27  N.  W.  642.  The 
remedy  given  by  the  statute  does  not  repeal  the  common  law  in  like 
case,  Randall  v.  Gross,  67  Neb.  255,  93  N.  W.  223.  And  the  distrainor 
has  no  right  of  distraint  if  he  has  no  lawful  fence,  Syford  v.  Shriver, 
61  la.  155,  16  N.  W.  56.  The  owner  may  in  such  case  replevy  in  the 
common  form  without  resorting  to  the  special  remedy  provided  by 
statute  in  the  case  of  a  lawful  distraint.  Cox  v.  Chester,  77  Mich.  494, 
43  X.  W.  1028. 

Plea  of  tender  of  amends  admits  that  the  cattle  were  lawfully  dis- 
trained damaged  feasant.  Miller  v.  Gable,  30  Ills.  Ap.  578.  A  plea 
Justifying  under  a  distraint  damage  feasant  must  show  how  and  in 
what  manner  the  animals  were  wrongfully  upon  the  premises;  "  wrong- 
fully "  is  a  mere  conclusion  of  law,  and  not  traversable.  Spahr  v. 
Tartt,  23  Ills.  Ap.  420. 

Answer  justifying  under  a  distraint  damage  feasant  and  averring 
that  before  defendant  had  time  to  ascerUiin  the  name  of  the  owner 
and  serve  notice  upon  him  as  required  by  statute,  the  plaintiff  took 
out  his  writ  of  replevin  without  tender  of  the  damages,  states  a  good 
defense,  Randall  v.  Gross,  supra..  Where  the  statute  authorizes  the 
distraint  of  an  animal  that  shall  "break  Into  the  Int^losure  "  of  any 
person,  dlKtralnt  of  an  animal  which  invades  an  unlnclosed  graln- 
fleld,  is  unwarranted,  Anderson  i.  Worley,  104  Ind.  106,  3  N.  B.  817. 


126  THE    LAW    OF    REPLEVIN. 

§  127.  Goods  lost  at  sea.  Wlicro  goods  were  found  upon  the 
ocean,  and  bv  llif  .s.ilvors  hrou^^lit  into  port,  it  was  licld  that  tlie 
ownersliip  ha<l  hcon  changed  to  the  insurer  by  the  abandonment; 
that  tlie  In.sunMs  of  goods  aban(h)ni'd  to  tliem  had  acquired  prop- 
erty iu  them,  and  that  they,  witli  the  owners  of  the  goods  not 
insured,  were  the  owners,  subject  to  the  lien  of  the  salvors ;  that 
the  salvors  had  simply  a  lien,  and  had  no  right  to  sell  or  pledge 
the  giMxls,  and  a  party  purchasing  from  them  could  not  sustain 
rcijlevin."""' 

§  lii8.  Goods  in  possession  of  one's  servant.  When 
giMids  are  taken  fiom  a  carrier  by  process  against  him,  the  owner 
may  sustiiin  an  action  against  the  taker,  the  owner  being  regarded 
as  in  possession,  and  the  carrier  as  his  servant.  Such  a  case 
presents  a  maiked  distinction  from  the  case  of  one  who  hires 
goods  iov  a  stated  period." 

§  rJl>.  Contract  for  purchase  of  property  does  not  neces- 
sarily confer  a  right  of  possession.  When  the  plaintiff  claims 
to  have  bought  the  property,  of  which  he  never  had  the  possession 
or  right  to  possession,  replevin  will  not  lie ;  the  proper  remedy 
Ix^ing  an  action  for  a  failure  to  complete  the  contract  of  sale.'* 
Plaintiff  bought  a  horse  for  one  thousand  dollars,  and  paid  one 
hundri'd  dollars,  and  was  to  have  the  horse  on  payment  of  nine 
hundred  dollars  more  within  thirty  days.  It  was  held  to  be  an 
executory,  not  an  executed  contract.  And  the  fact  that,  pending 
the  contract,  the  defendant  trotted  the  horse,  would  not  enable 
the  plaintiff  to  maintain  trover  until  after  the  conditions  were 
complied  with.'-' 

§  I'J".  An  officer  levying  process  has  a  special  property, 
and  a  right  to  possession.  An  officer  has  a  special  property 
by  the  lien  of  an  execution  in  his  hand.s,  and  has  sufficient  prop- 
erty in  goods  that  are  levied  on  to  sustain  replevin  against  the 
owner  who  is  defendant  in  the  proces.s,  or  any  one  who  wrong- 
fully takes  them."*     But  an  officer  has  no  such  lien  until  he  has 

••Whltwell  V.  Wells.  24  Pick.  31. 

"G.  W.  R.  R.  Co.  V.  McComas,  33  111.  186. 

"  Haverstick  v.  Fergus,  71  111.  105. 

^Whitcomb  v.  Hungerford,  42  Barb.  177.  See,  also,  Stevens  v.  Eno. 
10  Barb.  96;  Lester  v.  East.  49  Ind.  .'588;  Roper  v.  Lane,  9  Allen,  (Mass.) 
510;  Updike  v.  Henry,  14  111.  378;  Colder  v.  Ogden,  15  Pa.  St.  528. 

••Martin  v.  Watson,  8  Wis.  315;  Rhoads  v.  Woods,  41  Barb.  471;  Mul- 
heisen  r.  Lane,  82  111.  117;   Dayton  v.  Fry,  29  111.  529;   Dezell  v.  Odell, 


PLAINTIFF  MUST  HAVE  RIGHT  OF  POSSESSION.  127 

actually  levied  on  the  property ;  ^'  and  after  the  levy  and  exe- 
cution was  set  aside,  the  officer  could  not  recover."-  When  an 
officer  claims  title  to  property  upon  a  process  in  his  hands,  he 
must  not  only  show  a  process  regular  on  its  face,  but  a  valid 
judgment.'*^ 

3  Hill,  21:.;  Morris  v.  Van  Voast,  19  Wend.  283;  Clark  v.  Norton,  6 
Minn.  412;  Lockwood  v.  Bull.  1  Cow.  333;  Dunkin  v.  McKee,  23  Ind. 
447;  Walpole  v.  Smith,  4  Blackf.  304;  Whitney  v.  Burnette,  3  Wis.  625. 

"Mulheisen  v.  Lane,  82  111.  117.  "The  sheriff  who  has  seized  the 
goods  of  a  debtor  on  execution  has  a  special  property  in  them,  and,  if 
they  are  taken  from  him,  he  may  sustain  trover,  trespass  or  replevin." 
Ladd  V.  North,  2  Mass.  516;  Pomeroy  v.  Trimper,  8  Allen,  399;  Fitch  v. 
Dunn,  3  Blackf.  (Ind.)  142. 

»=  Walpole  V.  Smith,  4  Blackf.   (Ind.)   304. 

"Yates  V.  St.  John,  12  Wend.  74;  Earl  v.  Camp,  10  Wend.  562;  Dun- 
lap  V.  Hunting,  2  Denio,  643. 

Note  VII.  Levy. — A  mere  execution  lien  does  not  entitle  the  officer 
to  maintain  replevin;  his  duty  is  to  levy  upon  the  goods  and  reduce 
them  to  his  possession,  or  at  least  bring  them  within  his  immediate 
control,  Persels  r.  McConnell,  16  Ills.  Ap.  526.  A  mere  pen  and  ink 
levy,  is  not  sufficient.  Id. 

Even  an  officer  holding  the  senior  execution  which  is  by  law  a  lien 
on  the  goods  of  the  defendant  therein,  cannot,  having  made  no  levy, 
maintain,  as  against  an  officer  who  seizes  the  property  under  a  junior 
execution,  either  replevin  or  trover,  Mulheisen  t.  Lane.  82  Ills.  117. 

The  goods  must  be  in  the  power  or  at  least  in  view  of  the  officer, 
Carey  v.  Bright,  58  Pa.  St.  70.  The  levy  must  identify  the  property,  or 
afford  means  of  identifying  it,  so  that  the  particular  goodc,  and  no 
other,  may  be  chargeable.  The  goods  must  be  seized  manually,  or  by 
an  assertion  of  control  that  may  be  made  effectual  to  bring  them  within 
the  dominion  of  the  law,  Quackenbush  v.  Henry,  42  Mich.  75,  3  N.  W. 
262.  Everything  required  by  the  statute  must  be  done,  Clark  v.  Pat- 
terson, 58  Vt.  677,  5  Atl.  564.  The  officer's  merely  looking  through  tho 
window  at  a  stock  of  goods,  endorsing  a  levy  and  giving  a  ropy  of  his 
writ  to  the  deputy  sheriff  who  is  in  possession,  amounts  to  nothing. 
Larsen  v.  Ditto,  90  Ills.  Ap.  384.  Two  constables  had  writs  of  attach- 
ment against  the  same  defendant;  the  plaintiff  in  this  suit  was  at  the 
door  of  the  carriage-house  with  his  writ  in  his  hand  and  with  the  key 
to  the  house,  intending  to  levy;  held  this  was  not  an  attachment. 
And  the  defendant  having  crowded  in  as  soon  as  plaintiff  unlorked  the 
floor  and  having  first  laid  hands  on  the  carriage  In  (lucKlion.  his  levy 
was  held  fiiiperior.  No  Imjiortance  was  attached  to  the  clrcumstanci» 
that  whf-n  plaintiff  unlocked  the  (!oor,  he  announced  an  attachment  of 
the  goods  within,  naming  them.  Hollister  v.  Ooodale.  H  Conn.  332. 

But  In  ClalnoH  r.  Becker.  7  IIIh.  Ap.  315.  It  was  held  not  essential  to 
a  valid  levy  that  the  officer  should  even  touch  the  goods;  If  he  Imve 
them  In  view  where  ho  can  control  them,  and  assumes  doiulnion  ovii 


i:8  THE    LAW    OF    RKPLEVIN. 

§  i;51.  Possession  of  a  receiptor  to  an  officer.  But 
wlu'tht-r  :i  rcci'iptor  to  the  sheriff,  who  h;is  levied  on  the  goods, 
cjin  maintain  this  action,  is  a  ([uestion  upon  whieh  the  author- 
ities are  somewhat  variant.  In  New  York,  the  possession  of  tlie 
receiptor  is  the  possession  of  the  officer."'  When  goods  were 
attached  hy  the  slieriff,  and  left  in  the  hands  of  tlie  dehtoi-,  who 
gave  a  receipt,  and  they  were  afterwards  attached  by  another 
creditor,  the  attiiehment  l)y  the  second  officer  might  be  regarded 
as  a  trespass  on  the  right  of  the  fiist,  but  not  on  the  right  of  the 
debtor.  The  latter  cannot  complain  as  owner,  and  also  as  bailee 
of  the  first.  He  has  no  such  special  property  in  the  goods  as 
would  entitle  him  to  bring  replevin  in  his  own  name."^ 

^  lo*i.  An  agent  who  is  responsible  to  the  owner  has 
sufficient  possession  to  sustain  replevin.  An  auctioneer 
agent  who  is  responsible  to  the  owner  may  have  replevin  for 
goods  connnitted  to  his  possession  and  sold  by  him,  and  not  paid 

*':\Iitchell  V.  Hinman,  8  Wend.  667;  Phillips  v.  Hall,  8  Wend.  610. 

•^  Brown  v.  Crocket,  22  Me.  540.  See  Butts  v.  Collins,  13  Wend.  139; 
Miller  V.  Adsit,  16  Wend.  335;  Browning  v.  Hanford,  5  Hill,  588;  Dezell 
r.  Odell,  3  Hill,  215.  Contra,  Burrows  v.  Stoddard,  3  Conn.  160.  [In 
Hursh  V.  Starr,  6  Kans.  Ap.  8,  49  Pac.  CI 8.  it  was  held  that  a  receiptor 
may,  notwithstanding  his  receipt,  replevy  from  the  officer.  But  in  Burs- 
ley  V.  Hamilton,  15  Pick.  40,  the  conclusion  of  the  court  was  that  the 
receiptor  must  first  return  the  goods.  If  his  possession  is  interfered 
with  by  a  stranger  he  may  have  replevin,  Robinson  v.  Besarick,  156 
Mass.  141,  30  N.  E.  553.  And  in  mitigation  of  damages  he  may  show 
his  title.  Bursley  v.  Hamilton,  supra.  Edmonds  v.  Hill,  133  Mass.  445. 
In  Perry  v.  Williams.  39  Wis.  339.  it  was  held  that  a  receiptor  may  de- 
fend an  action  upon  the  receipt,  for  non-delivery  of  the  goods,  by  prov- 
ing his  title,  or  that  he  delivered  the  goods  to  the  true  owner.  Where  a 
forth-coming  bond  is  given  by  defendant,  and  a  married  woman  (she 
being  disqualified),  becomes  surety,  the  bond  will  be  treated  as  a  mere 
receipt  and  the  defendant  as  a  receiptor,  Hadley  v.  Hadley,  82  Ind.  95.] 

them  with  the  express  puriwse  of  holding  them  under  the  writ,  it  is 
sufficient;  but  his  control  must  be  continued,  either  by  the  officer  in 
person  or  by  a  custodian.  Id.  An  officer  appointed  guardian  for  the 
plaintiff  after  the  writ  comes  to  his  hand,  cannot  proceed;  his  subse- 
quent acts  are  void;  and  though  the  defendant  appears  and  pleads,  this 
does  not  validate  the  attachment  as  to  subsequently  attaching  credi- 
tors, Clark  r.  Patterson,  supra.  An  officer  may  perfect  an  imperfect 
levy  by  subsequently  Uiking  the  goods  and  maintaining  the  custody, 
Dawson  v.  Sparks,  77  Ind.  88.  The  valid  levy  of  civil  process  invests 
the  officer  with  a  special  property,  Corbin  v.  Pearce,  81  Ills.  461. 


PLAINTIFF    MUST    HAVE    RIGHT    OF    POSSESSIOM,        IZd 

for  according  to  the  conditions  of  the  sale ;  this  being  a  special 
property  sufficient  to  sustain  the  action."* 

§  313.  Wrongful  seizure  or  sale  by  an  officer  does  not 
affect  owner's  right.  Tlie  wrongful  sale  of  one's  property,  on 
an  execution  against  a  third  party,  does  not  divest  title,  and  the 
o\vner  can  sustain  replevin  ; "  and,  generally,  in  all  cases  where 
an  officer  wrongfully  seizes  and  sells  goods,  the  title  is  not 
divested  by  such  sale,  and  the  owner  may  have  replevin  for  the 
goods  against  the  purchaser.*" 

«*  Tyler  v.  Freeman.  3  Cush.  261. 
"  Dodd  V.  McCraw.  8  Ark.  83. 

''Eggleston  v.  Mundy,  4  Mich.  295;  Ward  v.  Taylor,  1  Pa.  St.  238; 
Shearick  v.  Ruber,  6  Binn.  (Pa.)  2. 


130 


TIJE    LAW    OF    REPLEVIN. 


CHAPTER  V. 


POSSESSION  BY  THE  DEFENDANT. 


Section. 

Replevin  does  not  lie  against 
one  not  in  possession  of  the 
goods        .....  134 

Tlie  sjinie  ;  some  exceptions      .  i;J5 

The  writ  lies  only  for  property 
in  existence      ....   136 

Proof  tliiit  the  defendant  was 
ahout  to  take  pos.session  will 
not  snstain  rejilevin         .         .  137 

Neglect  to  deliver  ;  when  not  a 
conversion  .         .138 

The  same 139 

Taking  under  a  license  not  a 
conversion        ....  140 

A  firm  may  Ije  responsihle  for 
the  act  of  one  member   .         .   141 

Taking  hy  an  officer  ;  when  suf- 
ficient to  render  him  liable  in 
this  action        ....   142 


Section. 

Possession  bj'  an  officer  not  pos- 
session of  the  creditor  in  the 
writ 143 

Servant  not  usually  liable  for 
holding  his  master's  goods     .   144 

Where  defendaJit  has  put  the 
goods  out  of  his  i)ossession     .   14,5 

Or  put  it  out  of  the  officer's 
power  to  execute  the  writ       .   146 

Fraudulent  transfer  of  goods     .  147 

Clothing  worn  on  the  person 
not  subject  to  the  writ  .         .148 

Possession  after  dismissal  of  an 
action  of  replevin  .         .         .149 

Defendant  acquiring  possession 
with  plaintiff's  conserit  .   150 

The  action  permitted  in  some 
States  without  delivery  of  the 
goods 151 


?  i;i4.  Replevin  does  not  lie  against  one  not  in  posses- 
sion of  the  goods.  It  i.s  also  a  rule  in  replevin  that  the  action 
only  lit's  against  a  defendant  who  is  in  possession  of  the  goods  at 
the  time  the  demand  is  made  or  suit  is  begun.  In  order  to  hold 
a  party  liable  for  the  immediate  delivery  of  the  goods,  he  must 
have  the  actual  or  constructive  possession  of  them  at  the  time,  so 
that  he  can  comply  with  the  demand  if  made,  or  with  the 
mandate  of  the  writ  for  delivery  if  it  should  issue  against  him.' 

'Ames  V.  Miss.  Boom  Co.,  8  Minn.  470;  Brockway  v.  Burnap,  8  How. 
Pr.  Rep.  188;  Roberts  v.  Randel,  3  Sandf.  (N.  Y.)  707;  Bradley  v. 
Gatnelle.  7  Minn.  331;  Hall  r.  WTiite.  106  Mass.  600;  McCormick  v. 
McCormick,  40  Miss.  760;   Burton  v.  Brashear,  3  A.  K.  Marsh,   (Ky.) 


POSSESSION    BY    THE    DEFENDANT.  131 

A  wrongful  taking  unless  followed  by  a  wrongful  detention  will 
not  sustain  the  action.^  In  trespass,  the  restoration  of  the  goods 
AA'ould  be  no  bar  to  the  suit.  The  action  having  once  accrued,  no 
act  of  the  defendant's  can  deprive  the  plaintiff  of  it;  but  re- 
plevin, for  the  delivery  of  specific  goods,  only  lies  in  case  the 
goods  are  detained.  Where  the  statute  allows  the  plaintiff  to 
have  judgment  for  the  goods  or  for  their  value,  at  his  option,  the 
reason  for  this  rule  would  not  apply. 

§  135.  The  same  ;  some  exceptions.  For  instance,  a 
wrongful  taking  followed  by  an  immediate  restoration  of  the 
goods ;  or,  where  the  taking,  though  wrongful,  was  in  ignorance 
of  the  plaintiff's  rights,  and  the  goods  have  been  in  good  faith 
sold  or  disposed  of,  before  demand  or  suit  brought ;  or,  when  the 
property  has  been  destroyed ;  or  an  animal  has  died ;  in  such 
case  some  other  action  than  replevin  must  be  pursued.^  The  gist 
of  the  action  benig  the  wrongful  detention,*  it  lies  for  goods 
wrongfully  detained  though  the  taking  was  rightful ;  *  but  does 
not  lie,  unless  there  is  a  wrongful  detention  at  the  time  the  suit 
is  brought.*^  In  New  York,  a  statutory  provision  allows  the 
arrest  of  the  defendant  whenever  it  is  shown  that  he  has  con- 
cealed, removed  or  disposed  of  the  property  to  avoid  the  writ,  or 
deprive  the  plaintiff  of  the  benefit  of  it ; '  and  the  courts  hold, 

277;  Howe  v.  Shaw,  56  Me.  291;  Grace  v.  Mitchell,  31  Wis.  536;  Baer  v. 
Martin,  2  Carter,  (Ind.)  229;  Myers  v.  Credle,  63  N.  C.  505. 

'Savage  v.  Perkins,  11  How.  Pr.  Rep.  (N.  Y.)  17;  Paul  v.  Luttrell,  1 
Col.  317. 

'Meriden  v.  Wheldon,  31  Conn.  118;  Lindsay  v.  Perry,  1  Ala.  (n.  s.) 
204;  Richardson  v.  Reed,  4  Grey,  442;  Coffin  v.  Gephart,  18  owa,  257; 
Moore  v.  Kepner,  7  Neb.  294. 

*  Haggard  v.  Wallen,  6  Neb.  272;   Mercer  v.  James,  G  Neb.     06. 

'  Esson  V.  Tarbell,  9  Cush.  407;  Waterman  v.  Matteson,  4  R.  I.  539; 
Dimond  v.  Downing,  2  Wis.  498. 

•Savage  v.  Perkins,  11  How.  Pr.  17;  Hayward  v.  Seaward,  1  Moore  & 
Scott,  459. 

^Watson  V.  McGuire,  33  How.  Pr.  Rep.  87.  See  Burnett  r.  Selling,  70 
N.  Y.  492.  [To  authorize  an  arrest  there  must  be  a  concealment  or  dis- 
posal of  some  of  the  goods  with  intent  to  defeat  the  process  of  the 
court  or  deprive  plaintiff  of  its  br-neflts;  e.  g.,  by  a  sale  to  a  bojia  fide 
purchaser,  or  changing  the  form  so  as  to  prevent  Identincatlon.  Harnett 
V.  Selling.  70  N.  Y.  492.  Plaintiff  alleging  facts  which  Justify  the 
arrest,  must  establish  them  or  suffer  a  discontinuance.  Lehman  t>. 
Mayer,  68  Ap.  Dlv.  12,  74  N.  Y.  Suj).  194;  and.  prevailing,  may  have 
execution  against  the  body,  though  no  order  of  arrest  was  made,  Id. 


132  THE    LAW    OF    REPLEVIN. 

that  in  such  cases,  that  tlie  action  may  be  prosecuted  where  the 
ili'fendant  has  not  tlio  possession  of  the  goods,  having  parted  with 
thcni  for  the  purjjose  of  avoiding  the  writ;*  but  as  we  shall  see, 
this  ruHnj;  (hies  not  depend  entirely  upon  the  statute,  but  applies 
independent  of  the  statute  in  many  cases  where  .the  defendant 
has  put  the  property  out  of  his  hands  to  avoid  the  writ. 

§  I'M).  The  writ  lies  only  for  property  in  existence.  The 
property  must  also  be  in  being,  of  tangible  or  api)reciable  form, 
subject  to  manual  delivery,  thus  for  the  young  which  animals  are 
expected  to  produce,  replevin  is  not  the  remedy."  When  A. 
agreed  that  his  horse  should  serve  the  mare  of  B.  upon  condition 
that  the  produce  should  belong  to  C.  Held,  that  C.  took  a  suf- 
tieicnt  title  to  sustain  trover,  but  could  not  have  replevin  before 
the  colt  should  be  foaled.'"  Neither  will  the  action  lie  for  prop- 
erty destroyed,  or  for  a  slave  who  died  before  suit  commenced  ;  " 
but  the  plaintiff  may  have  judgment  for  the  young  of  animals 
recovered  by  him,  notwithstanding  they  may  have  been  born 
after  the  suit  was  begun." 

i^  loT.  Proof  that  the  defendant  was  about  to  take  pos- 
session will  not  sustain  replevin.  As  has  been  stated,  the 
action  is  in  the  nature  of  a  proceeding  in  rem  for  the  delivery  of 

Where  the  statute  provides  for  a  capias  clause  in  the  writ  of  replevin, 
and  that  defendant  when  arrested  shall  be  discharged  upon  giving  bond, 
etc..  conditioned  to  "  abide  the  order  and  judgment  of  the  court,"  and 
"  cause  special  bail  to  be  put  in  if  such  bail  be  required,"  the  bond 
stands  as  special  bail  where  such  bail  is  not  required;  and  to  charge 
the  sureties  there  must  be  a  return  of  non  inventus  on  the  capias 
ad  satisfaciendum,  Duncan  v.  Owens,  47  Ark.  388,  1  S.  W.  698,  Eddings 
t'.  Boner.  1  Ind.  Ter.  173,  38  S.  W.  1110.  The  order  of  arrest  is  not  to 
be  executed,  under  the  statute  of  Arkansas,  in  force  in  the  Indian  Ter- 
ritory, unless  bond  be  given  for  due  prosecution,  for  return  of  the  goods, 
and  paying  such  sums  as  may  be  adjudged  against  the  plaintiff  in  the 
action;  and  if  such  bond  be  not  given,  the  arrest  is  unlawful  and  must 
be  vacated.  Eddings  v.  Boner,  supra.  Defendant's  right  to  insist  upon 
a  bond  is  not  waived  by  answer;  the  sureties  in  the  appeal  bond  are  not 
liable  for  the  value  of  the  goods  but  only  for  the  presence  of  defendant 
in  court.  Id.  After  vacation  of  the  order  of  arrest  the  action  may  still 
proceed  and  judgment  be  given  against  the  defendant  personally,  Id.} 

'Ellis  V.  Lersner,  48  Barb.  539;  NMchols  v.  Michael,  23  N.  Y.  264. 

•Lindsay  v.  Perry,  1  Ala.  203;  Chissom  v.  Hawkins,  11  Ind.  318. 

"McCarty  v.  Blevins,  5  Yerger,  (Tenn.)  196. 

"Burr  V.  Dougherty,  21  Ark.  559;  Caldwell  v.  Fenwick,  2  Dana, 
iKy.)   333. 

»» Buckley  v.  Buckley,  12  Nev.  426. 


POSSESSION'    BY    THE    DEFENDANT.  133 

the  identical  goods,  and  in  such  actions  the  defendant  must  have 
the  actual  or  constructive  possession  of  tlie  property  sued  for  at 
the  time  suit  is  brought,  as  the  action  lies  only  against  one  who 
has  sucli  possession  and  can  deliver  the  goods  sued  for."  Proof, 
therefore,  that  the  defendants  were  about  to  take  possession,  but 
had  not  actually  done  so,  will  not  sustain  the  action ; "  nor  will 
proof  that  the  defendant  intended  or  agreed  to  convert  the  goods 
to  his  own  use,  amount  to  a  conversion,  without  some  actual  in- 
terference with  the  property.'^ 

§  138.  Neglect  to  deliver;  when  not  a  conversion.  When 
at  the  time  of  the  service,  the  defendant  was  not  in  possession  of 
the  property,  and  denied  having  anything  to  do  with  it,  but  pointed 
out  his  son  in  whose  house  he  lodged,  who  was  then  present 
afid  had  possession  ;  held,  the  action  could  not  be  sustained  against 
the  father,  even  though  he  advised  his  son  not  to  deliver  it.'* 

§  139.  The  same.  When  the  plaintiff  and  his  wife  occupied 
separate  parts  of  the  wife's  house,  pending  a  suit  for  divorce, 
after  the  divorce  the  plaintiff  suffered  his  goods  to  remain  in  the 
house  ;  afterwards,  when  plaintiff  was  out,  the  defendant  fastened 
up  the  doors  and  windows.  Tlie  plaintiff  demanded  to  be  let 
into  the  house,  but  did  not  demand  the  goods,  the  defendant 
offered  to  put  out  his  property,  ])ut  the  plaintiff  forbid  her  to  do 
so,  and  brought  replevin.  Held,  that  the  defendant  was  not 
guilty  of  detaining  ;  she  excluded  the  plaintiff  from  her  building 
as  she  had  a  right  to  do,  but  there  was  nothing  to  show  taking  or 
detention  of  the  goods.'"  And  the  rule  appears  general,  that  mere 
neglect  to  deliver  goods  unless  they  are  actually  in  the  defend- 
ant's possession  at  the  time  of  demand,  will  not  amount  to  a 
conversion." 

"Lathrop  v.  Cook,  2  Shep.  (Me.)  414;  Sawyer  v.  Huff,  12  Shep.  (Me.) 
464;  Small  v.  Hutchins,  1  Appl.  (19  Me.)  255;  Learned  v.  Bryant,  13 
MasB.  224;  McCormick  v.  McCormitk,  40  Miss.  7G1;  Gaff  v.  Harding,  48 
HI.  148. 

"Whitwell  V.  Wells,  24  Pick.  29. 

'Mlfrron  v.  Hughes,  25  Cal.  555.  See  Squires  t'.  Smith,  10  B.  Mon. 
(Ky.)   34. 

'•Johnson  Admr.  v.  Garllck.  25  Wis.  705;  Timp  v.  Uockliam.  32  Wis. 
151;  Grace  v.  Mitchell.  31  Wis.  539. 

"  Bent  V.  Bent,  44  Vt.  C34. 

"Whitney  v.  Slauson,  30  Barl*.  27*;;  Hawkins  ;'.  Hoffman.  C  lllli,  58G; 
Hill  V.  Covell,  1  GoniHt.  522;  Hull  v.  KobluBOU,  2  Comst.  293;  Miller  v. 
III.  Cent.  R.  R.  Co..  24  Barb.  313. 


134  THE    LAW    OF    REPLEVIN. 

§  140.  Taking  under  a  license  not  a  conversion.  When 
the  Uiking  was  inatK'  uiuler  an  iiii[tli('(l  license  to  the  taker,  no 
conversion  result.s.  When  H.  hired  a  I'Ugg}  and  injured  it,  it 
was  agrt'od  that  he  .should  pay  for  the  repairs;  plaintiff  took  it 
to  a  shop  for  rejjair ;  next  day,  H.  went  to  the  shop  and  the  huggy 
not  being  repaired  or  in  process  of  repair,  he  took  it  to  anotlier 
shop  and  had  it  repairi'd ;  lie  did  not  take  or  obtain  it  for  his  own 
use  or  the  use  of  anyone  else,  it  was  not  injured  in  his  possession, 
and  in  faet,  no  element  of  conversion  appeared  in  any  act  of  the 
defendant.'-'  Sueh  a  taking  is  looked  upon  as  by  the  owner's 
consent,  rather  than  wrongful,  but  if  the  defendant  while  so  in 
the  actual  possession  of  the  goods  had  refused  to  deliver  on 
demand,  or  done  any  act  inconsistent  with  the  owner's  right, 
he  would  have  been  liable. 

§  HI.  A  firm  may  be  responsible  for  the  act  of  one  mem- 
ber. A  firm  may  be  responsible  in  this  action  for  the  taking  and 
detention  by  one  member  when  he  acts  for  and  on  the  part  of  all, 
though  if  his  wrongful  act  was  without  the  consent  of  the  others, 
he  would  alonc!  be  liable.-** 

ij  14ii.  Taking  by  an  officer ;  when  sufficient  to  render 
him  liable  in  this  action.  Where  the  defendant  was  an  officer 
who  had  levied  on  property,  but  did  not  remove  it,  the  defendant 
in  the  execution  who  still  retained  the  goods,  will  not  be  per- 
mitted to  sustiiin  replevin  against  the  officer,  as  the  possession 
was  still  in  himself;^'  but  wdien  an  officer  levies  on  good.s,  and 
takes  an  inventory,  and  directs  a  receiptor  to  prevent  their  re- 
moval, he  has  a  sufficient  possession  to  enable  the  owner  to  sus- 
tain replevin."'  And  sueh  a  taking  is  sufficient  ground  on  which 
to  base  an  action  against  the  officer. 

§  14;i  Possession  by  an  officer  not  possession  of  the 
creditor  in  the  writ.  The  actual  possession  of  an  officer  who 
has  seized  goods  on  process  in  his  hands,  is  not  the  constructive 
possession  of  the  creditor  in  the  writ.-'^    An  attachment  creditor, 

"Eldridge  v.  Adams,  54  Barb.  417. 

"Howe  V.  Shaw,  56  Me.  291. 

"  Hickey  v.  Hinsdale.  12  Mich.  100.  See  Mitchell  v.  Roberts,  50  N.  H. 
486;  Ramsdell  v.  Buswell,  54  Me.  548,  overruling  Sayward  v.  Warren, 
27  Me.  453;  English  v.  Dalbrow,  Miles  (Pa.)  160;  Wood  v.  Orser,  25 
N.  Y.  355;  Angel  v.  Keith.  24  Vt.  373. 

°  Fonda  v.  Van  Home.  15  Wend.  632. 

"Gallagher  v.  Bishop,  15  Wis.  282;  Booth  v.  Ableman,  16  Wis.  460; 


POSSESSION    BY    THE    DEFENDANT.  135 

therefore,  is  not  jointly  liiible  with  the  officer.  He  has  no  prop- 
erty iu  the  goods,  entire,  general  or  special,  and  no  possession  or 
right  of  possession.'*  But  where  the  attaching  creditor  claimed 
to  be  the  owner  of  the  property,  and  attached  the  goods  to  get 
possession  of  them,  and  had  them  in  possession,  he  was  liable  in 
replevin  as  well  as  in  trespass  or  trover ;  "  and  where  the  plaintiff 
in  an  execution  directed  the  sheriff  to  levy  on  certain  articles 
belonging  to  another  party,  the  court  considered  the  officer  as  the 
servant  or  agent  of  the  plaintiff  in  execution,  and  sustained  re- 
plevin against  him,  notwithstanding  he  was  never  in  actual  i)os- 
session  of  the  property.-*  Where  an  officer  has  levied  on  bulky 
articles,  and  endorses  his  levy  on  his  process,  and  refuses  to 
give  them  up,  but  asserts  his  right,  he  has  such  a  possession  as 
will  justify  replevin  against  him,  there  being  no  actual  possession 
and  control  of  the  goods  in  any  other  person." 

?j  144.  Servant  not  usually  liable  for  holding  his  master's 
goods.  As  a  general  rule,  the  possession  of  the  defendant  must 
be  a  possession  under  some  claim  of  right  in  himself.  A  servant 
is  not,  as  a  general  thing,  a  proper  defendant  in  replevin,  when 
he  only  holds  the  goods  as  his  master's,  unless  he  is  guilty  of 
some  wrongful  act.^  So,  where  a  servant  refuses  to  deliver  goods 
entrusted  to  him  by  his  master,  without  his  master's  order,  the 
servant  is  not  personally  liable  in  replevin,  the  master  being  the 
proper  defendant,''*  the  possession  being  the  possession  of  the 
master.  So,  in  trover  for  a  note,  the  defendant  claimed  to  be 
agent  for  his  wife,  and  the  possession  was  regarded  as  in  the 
wife.*"  But  the  agent  of  an  express  company  may  be  sued  if  he 
refuse  to  deliver  goods  after  payment  or  tender  of  legal  charges.^' 

Ilsley  V.  Stubbs.  5  Mass.  283;  Smith  v.  Orser,  43  Barb.  187;  Grace  v. 
Mitchell,  31  Wis.  533. 

"Douglass  V.  Gardner.  63  Me.  462;  Richardson  v.  Reed,  4  Grey.  442; 
Ladd  V.  North.  2  Mass.  516;  Grace  v.  Mitchell.  31  Wis.  533;  Small  v. 
Hutchins,  19  Me.  255;  Mitchell  r.  Roberts.  50  N.  H.  486.  Contra,  see 
Hathaway  v.  St.  .John,  20  Conn.  346;   Howen  v.  Hutchins.  IS  Conn.  550. 

Tripp  V.  Leland,  42  Vt.  488. 

"Allen  V.  Crary,  10  Wend.  349. 

"Hatch  V.  Fowler.  28  Mich.  212. 

"Bennett  v.  Ives.  30  Conn.  329;  Owen  r.  Gooch,  2  FJsp.  567. 

•Mires  V.  Solebay.  2  Mod.  242;  Mount  ?'.  Derick.  5  Hill.  456;  Storm 
V.  LIvinKHton,  6  .Johns.  44;   Alexander  r.  Southey.  5  Barn.  &  Aid.  247. 

"  Hunt  r.  Kane.  40  Barb.  638.  See  Matteawan  Co.  v.  Benlley,  13  Barb. 
«43. 

•' Evelclh    r     Hldssoiii     .',  |    .Mr     4I7. 


136  THE    LAW    OF    REPLEVIN. 

§  14;').     Where  defendant  has  put  the  goods  out  of  his 

possession.  TIu'Il-  arc  casi's  which  hohl  that  tlic  action  may, 
under  certain  circumstances,  be  brought  against,  a  defendant  after 
he  lias  parted  with  the  possession  of  the  goods;  thus,  wlien  the 
defendant  has  let  the  goods  for  hire,  and  it  appears  lie  can  resume 
them  at  pleasure."  Also,  where  the  defendant  has  lately  had 
possession  of  the  goods,  and  has  fraudulently  made  away  with 
them,  for  the  purjiose  of  defeating  the  action,  it  may  sometimes 
be  sustiiined."  Where  defendant  was  charged  with  fraudulently 
ol>taining  jiossession  of  plaintiff's  property,  and  consigning  it  to 
his  uncle  in  London,  and  that  he  had  drawn  drafts  on  the  bill  of 
lading,  payable  when  it  should  arrive,  the  plaintiff  might  sustain 
action.'*  It  will  l)e  seen  that  it  is  not  ab.solutely  necessary  to 
susUiin  the  action,  that  tlu;  officer  be  able  to  find  and  deliver  the 
goods.     Exceptions  to  the  general  rule  arise  in  many  cases. 

§  140.  Or  put  it  out  of  the  ofificer's  pow^er  to  execute  the 
writ,  ^^'llen  the  defendant  puts  it  out  of  the  power  of  the  officer 
to  proceed  aiid  execute  the  writ,  the  plaintiff  may  be  allowed  to 
proceed  with  the  case  and  recover  the  full  value  of  the  goods, 
with  damages  for  the  detention.^^  Where  the  writ  was  for  rails, 
and  the  defendant  took  part  of  them  and  built  them  into  a  fence, 
it  was  admitted  the  sheriff  could  not  take  them ;  liut  the  plaintiff 
was  permitted  to  recover  damages  to  the  full  value.  To  permit 
the  defendant  so  to  take  advantage  of  his  own  wrong  is  contrary 

"Gaines  v.  Harvin,  19  Ala.  491;  Bradley  v.  Gamelle,  7  Minn.  331; 
Harris  v.  Hillman,  26  Ala.  383. 

"Drake  v.  Wakefield,  11  How.  Pr.  Rep.  107;  Nichols  v.  Michael,  23  N. 
Y.  264;  Ellis  v.  Lersner,  48  Barb.  539;  Dunham  v.  Troy  Union  R.  R.  Co., 
3  Keyes,  (N.  Y.)  543;   Savage  v.  Perkins,  11  How.  Pr.  Rep.  17. 

"Ellis  V.  Lersner,  48  Barb.  539.  See,  also.  Burton  v.  Brashear,  3  A. 
K.  Marsh,  (Ky.)  278;  Powers  v.  Bassford,  19  How.  Pr.  309;  Garth  v. 
Howard,  5  Car.  &  P.  352;  Ford  v.  Caldwell.  3  Riley,  (S.  C.)  277,  3  Hill 
&  New  Ed.,  2  Hill,  ^238;  Anderson  v.  Passman,  7  C.  &  P.  193;  Harris  v. 
Hillman,  26  Ala.  380;  Clements  v.  Flight,  16  Exch.  42;  Walker  v.  Fen- 
ner.  20  Ala.  198;  Brockway  v.  Burnap,  16  Barb.  309,  overruling  S.  C. 
(12  Barb.)  347;  Southcote  v.  Bennett,  Cro.  Eliz.  815;  Jones  v.  Dowle,  9 
M.  &  W  19;  Garth  v.  Howard,  5  C.  &  P.  346;  Anderson  v.  Passman,  7 
C.  &  Payne,  193;  8  B.  &  Aid.  703. 

"Pomeroy  v.  Trimper.  8  Allen,  403;  Bower  v.  Tallman,  5  Watts  & 
S.  561 :  Baldwin  v.  Cash.  7  Watts  &  S.  426.  See  able  dissenting  opinion 
in  Ramsdell  v.  Buswell.  54  Me.  548;  Ross  v.  Cassidy,  27-37  How.  Pr. 
416.  In  New  York,  when  the  defendant  had  put  the  property  out  of  his 
hands,  for  the  purpose  of  preventing  the  writ,  the  statute  formerly  al- 


POSSESSION    BY    THE    DEFENDANT.  137 

to  all  the  principles  of  the  law.*^  When  the  oflScer  caused  the 
value  of  the  property  to  be  ascertained,  and  had  taken  security- 
required  by  law,  and  had  taken  the  property  into  his  custody, 
when  it  was  forcibly  taken  from  him  by  the  defendant,  the  plaintiff 
may  proceed  and  recover  the  value  as  damages. 

§  147.  Fraudulent  transfers  of  goods.  When  one  obtains 
goods  by  fraud,  and  had  transferred  them  to  a  trustee  for  his 
creditors,  a  joint  action  lies  against  both."  Where  A.,  without 
any  authority,  pledges  the  property  of  B.  to  C,  action  of  detinue 
may  be  against  botli.^'* 

§  148.  Clothing  worn  on  the  person  not  subject  to  the 
writ.  While  the  property  must  be  in  the  defendant's  pos.session, 
yet  it  is  not  all  property  in  his  possession  which  is  liable  to  be 
taken  on  a  writ  of  replevin.  Thus,  where  the  property  is  in 
actual  use  by  the  defendant,  or  worn  upon  his  person,  as  a  jev\^el 
or  watch,  even  though  worn  for  the  purjoose  of  evading  a  seizure. 
The  officers  cannot  take  it  so  long  as  it  continues  to  be  Avorn  on 
the  person  of  the  defendant.  A  man's  clothes  cannot  lawfully  be 
taken  from  his  back,  nor  his  watch  from  his  pocket  or  his  hand, 
by  an  officer  upon  a  writ  of  replevin."' 

§  149.  Possession  after  dismissal  of  an  action  of  replevin. 
Wben  the  action  of  replevin  was  dismissed  without  an  order  for 
a  return,  the  defendant  is  not  liable  to  a  second  action  for  the 
same  property,  unless  it  appears  that  the  goods  have  come  into 
his  possession,  and  that  he  lias  asserted  a  right  or  done  some  act 
inconsistent  with  the  plaintiff's  claim.  The  return  of  the  proj)- 
erty  to  an  inn-keeper,  from  whose  house  it  was  taken,  is  not  of 
itself  a  restoration  to  tlie  defendant,  unless  he  authorized  or 
adopted  the  act  as  his  own.     The  defendant  in  the  hrst  action 

lowed  an  arrest.  Roberts  r.  Randel,  3  Sandf.  (X.  Y. )  707.  Consult  Van 
Neste  V.  Conover,  20  Barb.  547;  Ward  v.  Woodburn.  27  Barb.  340; 
Nichols  V.  Michael,  23  N.  Y.  264;  United  States  v.  Buchanan,  8  How. 
83;  Brockway  v.  Burnap,  IG  Barb.  309. 

"Bower  v.  Tallman,  5  W.  &  S.  (I^a.)  5G1.  See  Snow  v.  Roy,  22  Wend. 
604. 

"  Nichols  V.  Michael.  23  N.  Y.  209. 

*  Garth  v.  Howard,  5  Car.  E.  P.  34G. 

"Maxham  v.  Day.  16  Gray,  (Mass.)  214;  Gorton  v.  Falkner,  4  I).  & 
Eaat.  565  and  305;  Storey  v.  Robinson.  6  Term.  R.  139  and  73;  Mack  v. 
Parks,  8  Gray,  (.Mass.)  517;  Sunbolf  v.  Alfonl,  3  Mces.  &  W.  248.  Ah 
to  whether  the  sheriff  can  break  and  enter  a  dwelling  house,  Bee  post, 
power  and  duly  of  sheriff. 


138  THR    LAW    OF    REPLEVIN. 

made  no  claim  to  the  property,  and  this  would  seem  to  indicate 
that  lu'  (lid  not  intend  furth(»r  to  assort  any  claim  to  it.*" 

§  !;')(».  Defendant  acquiring  possession  with  plaintiff's 
consent.  Where  the  defendant  sells,  or  otherwi.se  disposes  of 
the  goods,  the  owner  standing  by  and  making  no  objections,  when 
he  can,  with  pro[)riety,  speak,  he  cannot  afterward  sustain  re- 
plevin ag-.iinst  purchasers.*'  This  rule  finds  numerous  illustrations 
in  ditVerent  eases,  but  the  general  principle  is  the  same  in  all — 
that  when  one  sUmds  in  silence  and  permits  another  to  act  upon 
an  erroneous  state  of  facts,  to  the  injury  of  the  person  whom  he 
sutVered  to  remain  in  error,  he  is  estopped  from  setting  up  his 
rights.*- 

♦■'Way  r.  Barnard,  36  Vt.  370. 

*'  Skinner  v.  Stouse,  4  Mo.  93. 

"Thompson  i\  Blanchard,  4  N.  Y.  303;  Erie  Savings  Bank  v.  Roop, 
48  N.  Y.  292;  Brewster  v.  Baker,  16  Barb.  613;  Otis  v.  Sill,  8  Barb.  102; 
Hope  V.  Lawrence,  50  Barb.  258. 

NoTK  Vin.  Estoppel. — One  who  permits  another  to  control  his  prop- 
erty and  declares  him  to  be  the  owner,  is  estopped  to  deny  this  as 
against  an  officer  who,  on  the  faith  of  such  declaration,  levies  upon 
the  goods  under  process  against  such  other  person,  Nodle  v.  Haw- 
thorn, 107  la.  380,  77  N.  W.  1062;  see  Janes  v.  Gilbert,  168  His. 
627,  48  N.  E.  177.  Covenant  for  title  estops  the  seller  of  goods 
to  set  up  title  in  himself  or  any  third  person,  unless  derived  from 
his  vendee,  McLeod  v.  .Johnson,  96  Me.  271,  52  Atl.  760.  Landowner, 
who,  with  full  knowledge,  consents  that  one  who  claims  under  a 
lease  granted  by  another,  shall  continue  in  possession,  is  estopped 
to  claim  the  tenant's  crop,  grown  while  he  occupies  pursuant  to 
this  lease,  Bowen  v.  Roach,  78  Ind.  361.  Defendant  who  has  urged 
plaintiff  to  bring  replevin  cannot  object  to  the  form  of  the  action, 
Sparling  v.  Marks,  86  His.  125.  If  a  married  woman  acquiesces  in  a 
sale  or  mortgage  of  her  property  by  her  husband  as  his  own,  she  is 
estopped  to  assert  title  as  against  the  purchaser  or  mortgagee,  Ingals 
V.  Ferguson,  59  Mo.  Ap.  299.  Plaintiff  took  a  writ  of  replevin  and  cer- 
tain goods  were  seized  under  it;  to  entitle  himself  to  delivery  he  gave 
a  bond  as  required  by  statute.  Held,  this  was  an  adoption  of  the  act 
of  the  sheriff  in  seizing  the  particular  goods,  Aldrich  v.  Ketcham,  3' 
E.  D.  Sm.  577. 

The  bailee  is  not  estopped  to  deny  the  title  of  his  bailor;  nor  to 
show  that  he  obtained  the  possession  unlawfully,  and  that  the  bailee 
at  the  institution  of  the  action,  was  holding  the  goods  by  authority  of 
the  true  owner,  Gray's  Admr.  v.  Allen,  14  Ohio,  59.  The  wife's  conduct 
in  permitting  her  husband  to  list  the  goods  for  taxation  in  his  own 
name,  is  merely  an  admission,  the  effect  of  which  is  for  the  jury.  Deck 
r.  Smith,  12  Neb.  390,  11  N.  W.  852.  Defendant  in  trover,  in  order  to 
avoid  imprisonment,  executes  a  bond  conditioned  for  the  forthcoming 
of  the  goods.     This  does  not  estop  him  from  denying  possession,  Bell 


POSSESSION    BY    THE    DEFENDANT.  139 

§  151.  The  action  permitted  in  some  States  without  de- 
livery of  the  goods.     In  many  of  the  States  actions  for  the  re- 

r.  Ober  Co.,  Ill  Ga.  668,  36  S.  E.  904.  Vendor  of  goods  obtained  upon 
credit  by  fraud,  supposing  the  goods  to  have  been  actually  delivered  to 
the  buyer,  proved  his  claim  under  the  assignment  made  by  the  buyer; 
he  was  not  estopped  from  afterwards  reclaiming  the  goods  in  the 
hands  of  the  carrier  upon  discovering  the  facts,  Lentz  v.  Flint,  etc.,  Co. 
53  Mich.  444.  19  N.  W.  138.  After  a  completed  sale  and  delivery  of  an 
animal,  it  remained  for  some  time  in  possession  of  the  buyer;  the  seller 
then,  without  knowledge  of  the  buyer,  took  it  away;  the  buyer  there- 
upon sued  for  the  feed  and  pasturage,  but,  dismissed  his  action.  Held 
that  this  suit  might  be  some  evidence  of  an  assent  on  his  part  to  the 
attempted  rescission,  but  did  not  conclude  him,  Kuhns  v.  Gates,  92  Ind. 
66.  A  statement  or  admission  as  to  title,  of  which  the  adverse  party 
has  no  knowledge  at  the  time  of  acquiring  his  interest,  does  not  raise 
an  estoppel,  Harward  v.  Davenport,  105  la.  592,  75  N.  W.  487,  First 
National  Bank  r.  Ragsdale,  171  Mo.  168,  71  S.  W.  178.  A  father  au- 
thorized his  son  to  mortgage  certain  livestock  of  the  father,  but  did 
not  authorize  him  to  execute  the  mortgage  in  his  own  name;  the  son, 
without  the  father's  knowledge,  made  the  mortgage  in  his  own  name, 
reciting  that  he  was  the  owner;  the  mortgage  was  so  recorded.  Held, 
the  father  was  not  estopped  thereby  as  against  one  who  levied  an  exe- 
cution against  the  son  upon  the  faith  of  the  declarations  contained  in 
the  mortgage,  Harward  v.  Davenport,  supra.  The  state  does  not  lose 
title  to  logs  cut  upon  tho  public  lands,  by  its  failure  to  assert  title, 
though  it  claims  and  seizes  other  logs  cut  on  the  same  lands.  State  v. 
Patten,  49  Me.  383.  Failure  to  assert  title  when  a  particular  animal  is 
sold  and  turned  out,  is  not  an  estoppel  if  the  owner  was  not  at  the  time 
aware  of  the  fact  that  his  animal  was  so  sold  and  turned  over.  Bright 
V.  Miller,  95  Mo.  Ap.  270,  68  S.  W.  1061,  Lamotte  v.  Wisner,  51  Md. 
543. 

No  one  is  estopped  by  the  statements  of  another  not  shown  to  have 
authority  to  speak  for  him;  nor  by  statements  even  of  an  authorized 
person,  if  made  under  mistake  of  facts.  Pease  v.  Trench,  197  Ills.  101, 
64  N.  E.  368.  A  trainer  sometimes  entered  in  his  own  name  horses 
left  with  him,  to  be  trained,  and  raced;  this  does  not  estoi)  the  owner 
to  claim  thf  animals  when  attached  for  the  trainer's  debts,  Anderson  r. 
Heile,  23  Ky.  L.  H.  1115,  64  S.  W.  849.  A  horse  belonging  to  the  wife, 
was  in  control  of  the  husband,  who  put  him  in  possession  of  another; 
the  wife  Haw  the  horse  In  possession  of  such  other  person  on  several 
occaBionH  and  made  no  objection  nor  asserted  any  claim;  but  she  was 
not  then  informed  that  the  one  so  In  possession  made  any  claim  to  tlu» 
animal  on  his  part;  hold,  she  was  not  cstoi)ped  to  afterwards  assert 
her  rightK.  Ingals  r.  KergUHon.  13S  .Mo.  :ir,H,  :>/J  S.  W.  SOI. 

Conduct  of  the  owner  of  goodH,  not  known  to  one  wlio  piinlia.scd 
from  her  huKband,  at  the  lime  of  the  purchaHe,  does  not  estop  lier 
from    .ih.sertiiii.'    hir    titlr,    .\I(  Chil.v    r     Wii  i  li.].-.    .Vcb     1(11,    N.    \V.    L'44. 


HO  THE    LAW    OF    REPLEVIN. 

rovery  of  goods  in  specie  may  l)e  prosecuted  without  asking  a 
delivery  of  the  goods  until  after  the  final  judgment  of  the  court 
on  the  merits  of  the  controversy.  In  such  case,  the  reason  for 
the  rule  which  forbids  the  action  against  any  one  not  in  posses- 
sion fails ;  and,  while  adjudications  directly  on  this  question  are 
not  numerous,  no  reasons  exist  why,  in  such,  the  plaintiff  may 
not  have  an  alternative  judgment,  for  the  goods  or  their  value, 
ag5\inst  a  defendant,  after  he  has  parted  with  the  possession,  as 
well  as  before. 


JOINT    OWNERS. 


141 


CHAPTER  VI. 


JOINT  OWNERS. 


Section. 

One  joint  tenant  cannot  main- 
tain replevin  against  his  co- 
tenant       152 

The  same.  Appearing  in  the 
writ,  or  pleaded  by  the  de- 
fendant      153 

Replevin  does  not  lie  for  an  un- 
divided interest       .        .        .  154 

Owners  of  separate  interests 
cannot  join,  but  joint  owners 
must 155 

Action  by  one  of  two  owners 
does  not  lie  against  a  stranger 
for  the  joint  property     .         .156 

The  same.  Illustrations  of  the 
rule 157 

Landlord  reserving  a  share  of 
the  crop  cannot  sustain  re- 
plevin until  his  share  is  set 
apart 158 


Section- 
Death  of  one  partner,  who  en- 
titled to  the  partnership  prop- 
erty   159 

The  same.     Joint  tenancy,  how 

pleaded 160 

By  agreement  of  all  joint  own- 
ers,   the   right  of  possession 
may  be  in  one        .        .        .  161 
The  severance  of  the  joint  ten- 
ancy by  agreement        .        .  163 
Severance    by  the  act  of  one 

joint  tenant      ....   163 
Purchaser  of  a  joint  tenant's 

interest  at  sheriff's  sale  .         .  164 
Sale  by  one  partner  of  his  inter- 
est in  goods     ....  165 
An  officer  with  process  against 
one   member  of  a  firm   may 
seize      all     the     partnership 

goods 166 

The  same 167 


§  152.  One  joint  tenant  cannot  sustain  replevin  against 
his  co-tenant.  One  joint  tenant  cannot  sustain  ivpU'vin  a.c^ainst 
his  co-tenant  for  the  possession  of  tiie  chattels  owned  l)y  them  in 
common,  for  the  rea.son  that,  unless  there  be  some  agreement  to 
the  contrary,  one  has  as  nmch  right  to  the  possession  of  the  joint 
proiMjrty  as  the  other.' 

'  Prentice  v.  Ladd.  12  Conn.  331;  Russel  v.  Allen.  13  N.  Y.  173;  Wilson 
V.  Reed,  3  Johns.  177;  Ellis  v.  Culver.  1  Har.  (Del.)  76;  Barnes  v.  Uart- 
lett.  15  Pick.  71;  Hardy  v.  Sprowle.  32  Me.  322;  Wills  v.  Noyes.  12 
Pick.  324;  Eakin  v.  Eakin,  63  III.  1(;0.  But  If  one  tenant  In  common 
dcHtroys  thf-  thinK,  lr()v«T  will  lie.  WIlHon  v.  Reed.  3  Johns.  177;  Co. 
Lltt.  200a.    Tenants  lu  common  are  not  like  partners.    One  partner  may 


142  Tin-:    LAW    OF    REPLEVIN. 

§  l;'):{.  The  same.  Appearing  in  the  writ,  or  pleaded  by 
the  defendant.  It"  tli<-'  t^K't  "t  .i<'i>'t  tenancy  be  shown  by  the 
sell  the  llrni  property  without  boini;  liable  in  tort.  Fox  v.  Hanbury,  2 
Cowp.  450.  But  one  partner  cannot  sustain  replevin  against  his  part- 
ner for  the  exclusive  jKJssession  of  the  firm  projjerty.  Azel  v.  Betz,  2 
E.  D.  Smith.  18S;  Holton  v.  Binns.  40  Miss.  492;  Noble  v.  Epperly,  6 
Port.  (Ind.)  41»;;  Mills  v.  Malott.  43  Ind.  252;  Rogers  v.  Arnold,  12 
Wend.  30;  Eakin  r.  Eakin.  63  111.  160;  Wetherell  v.  Spencer.  3  Mich. 
123;  Hill  V.  Robinson.  16  Ark.  90;  Hardy  v.  Sprowle.  32  Me.  322; 
M'Elderry  r.  Flannagan.  1  Har.  &  G.  (Md.)  308.  One  partner  cannot 
maintain  replevin  against  the  other  for  firm  goods,  and  defendant  may 
have  return.  Reynolds  v.  McCormick,  62  111.  415.  See  Chambers  v. 
Hunt.  22  N.  .1.  L.  554.  The  possession  of  one  tenant  in  common  is  the 
possession  of  all.  Walker  v.  Fenner,  28  Ala.  373.  All  the  plaintiffs 
must  be  entitled  to  recover,  or  none  of  them  can.  lb.  By  the  common 
law,  if  a  woman  own  chattels  in  common  with  another,  and  marry, 
the  tenancy  in  common  ceases,  and  the  husband  becomes  tenant  in 
(>ommon  with  the  others.  Walker  v.  Fenner,  28  Ala.  373.  Husband  and 
wife  could  not  be  tenants  in  common,  as  her  chattels  are  absolutely 
his.  lb.  If  one  tenant  in  common  take  all  the  goods,  by  common  law, 
the  other  has  no  remedy,  but  might  retake  the  goods,  if  he  could.  Co. 
Litt.  200o.-  Dixon  r.  Thatcher,  14  Ark.  145;  M'Elderry  v.  Flannagan,  1 
H.  &  Gill.  (Md.)  308;  Daniels  v.  Brown,  34  N.  H.  454.  In  some  of  the 
states,  statutory  enactments  have  changed  or  modified  this  rule;  as. 
In  California,  a  statute  provided  that  "  Joint  tenants  "  may  jointly  or 
severally  bring  or  defend  any  civil  action  for  the  enforcement  or  pro- 
tection of  the  rights  of  such  party.  This  statute  was  construed,  in 
Schwartz  v.  Skinner,  47  Cal.  6,  which  was  a  case  for  the  undivided  part 
of  the  furniture  of  a  hotel.  The  defendant  in  possession  refused  to  per- 
mit the  plaintiff  to  take  or  share  posession,  and  refused  to  pay  any  rent. 
The  court  directed  a  judgment  for  the  plaintiff.  The  case  of  Schwartz 
r.  Skinner  seems  to  stand  alone;  but  see  Bostick  v.  Brittain,  25  Ark. 
482;  Hewlett  v.  Owens,  50  Cal.  475. 

Note  IX.  Tenants  in  Common. — One  joint  tenant  or  tenant  in 
common  cannot  recover  the  common  property  from  his  co-tenant. 
Balch  V.  .Jones,  61  Calif.  234;  Jackson  v.  Stockhard,  9  Baxt.  260; 
Prltchard's  Administrator  v.  Culver,  2  Harr,  Del.  129;  Myers  v.  Moul- 
ton,  71  Calif.  499,  12  Pac.  505;  Bernardiston  v.  Chapman,  4  East, 
121;  Pullian  v.  Burlingame,  81  Mo.  Ill,  51  Am.  Rep.  229;  Upham 
V.  Allen,  73  Mo.  Ap.  224;  Lisenby  v.  Phelps,  71  Mo.  522;  Ellis  v. 
SImpklns,  81  Mich.  1.  45  N.  W.  646.  Nor  from  a  bailee  of  all  the 
tenants  in  common.  George  v.  McGovern,  83  Wis.  555,  53  N.  W.  899; 
Smith-McCord  Co.  v.  Burke,  63  Kans.  740,  66  Pac.  1036;  nor  from  an 
oflBcer  who  has  levied  upon  the  interest  of  his  co-tenant,  and  seized 
the  chattel  under  such  levy.  Phipps  v.  Taylor,  15  Ore.  484,  16  Pac.  171; 
Sharp  V.  Johnson,  38  Ore.  246.  63  Pac.  485;  Hackett  v.  Potter,  131  Mass. 
50;  but  see  Jones  r.  Richardson.  99  Tenn.  614,  42  S.  W.  440;  Bray  v. 
Raymond,   166  Mass.   146,  44  N.  E.   131.     Nor  can  several,  as  against 


JOINT    OWNERS.  143 

plaintiff  in  his  pleadings,  or  in  his  writ,  the  suit  must  fail.     The 
court  will  usually  in  such  case  direct  that  the  writ  abate,-  and 

==Hart  V.  Fitzgerald,  2  Mass.  509. 

one  who  shows  himself  entitled  to  an  interest  as  tenant  in  common 
with  any  of  them,  Cinfel  v.  Malena,  67  Neh.  95,  93  N.  W.  165;  nor  can 
a  partner  maintain  replevin  against  his  co-partner  for  partnership 
goods;  the  partnership  accounts  cannot  be  settled  in  an  action  of 
replevin,  Jenkins  v.  Mitchell,  40  Neb.  664,  59N.  W.  90;  Ferguson  v. 
Day,  6  Ind.  Ap.  138,  33  N.  E.  213;  one  who  purchases  the  interest  of  a 
co-partner  in  partnership  goods,  upon  execution,  acquires  no  right  to 
possession;  he  has  merely  the  right  to  an  account.  Reinheimer  v. 
Hemingway,  35  Pa.  St.  232.  But  where  the  articles  of  co-partnership 
provide  that  one  of  the  firm  named  shall,  on  dissolution,  "  be  entitled 
to  the  assets  and  property  of  the  firm,"  he  bedomes  vested  with  the 
absolute  title  whenever  the  dissolution  occurs,  and  may  maintain 
replevin  against  the  other,  Depew  i\  Leal,  2  Abb.  Pr.  131.  So  it  seems 
where  the  appliances  used  by  the  firm  are  the  property  of  one  partner, 
Calderwood  v.  Robertson,  112  Mo.  Ap.  103,  86  S.  W.  879.  A  partner 
cannot  recover  in  replevin,  basing  his  right  upon  a  mortgage  to  the 
firm,  Vinson  v.  Ardis,  81  Ala.  271,  2  So.  879.  A  musical  association 
purchased  instruments;  by  express  agreement  they  were  the  property 
of  the  association,  the  association  to  purchase,  at  a  valuation,  the  in- 
terest of  any  member  removing;  one  member  removing  carried  his 
instrument  with  him.  Held  the  other  members  could  not  replevy. 
Heller  v.  Huffsmith,  102  Pa.  St.  533.  Stocks  are  borrowed  from  a  co-ten- 
ant for  hypothecation;  failure  to  redeem  them  from  the  pledge  is 
not  a  conversion  and  will  not  sustain  an  action  by  the  co-tenant,  Bar- 
rowcliffe  r.  Cummins,  66  Hun.  1.  20  N.  Y.  Sup.  787.  But  where  chattels 
which  are  of  the  same  nature  and  quality  are  mingled  in  one  mass 
with  the  consent  of  the  different  owners,  any  owner  may  recover  his 
aliquot  part  in  replevin.  Stall  v.  Wilbur,  77  N.  Y.  158;  Grimes  v.  Can- 
nell,  23  Neb.  187,  36  N.  W.  479;  Eillingboe  v.  Brakken,  36  Minn.  156, 
30  N.  W.  659;  even  though  there  has  been  no  division.  Pitman  v. 
Baumstark,  63  Kans.  69.  64  Pac.  968;  Piazzek  v.  White,  23  Kans.  621; 
and  by  greater  reason  if  there  has  been  a  division,  and  the  wrongdoer 
has  transferred  to  a  stranger  the  moiety  of  the  common  goods,  Cornett 
V.  Hall,  103  Mo.  Ap.  353.  77  S.  W.  122;  Stall  v.  Wilbur.  77  N.  Y.  158. 
This  doctrine  was  held  applicable  to  pieces  of  timber  of  substantially 
the  same  size,  shape  and  kind;  an  owner  of  a  share  in  such  timbers 
may  sue  In  replevin  for  his  part;  or  suing  for  the  whole  njass  may 
'  recover  the  number  to  which  he  Is  entitled,  Rcid  v.  King,  89  Ky.  3SS, 
12  S.  W.  772.  In  W.tltlcs  r.  Dubois.  67  Mich.  313.  34  N.  W.  672.  It 
was  held  applicable  to  wli»'at  In  the  straw,  which.  It  was  said,  was  as 
much  wheat  and  as  capable  of  division  as  after  threshing  and  winnow- 
ing. In  llalpin  v.  Stone.  78  Wis.  183.  47  N.  W.  177.  It  was  held  ai)- 
j)llcable  to  railway  ties.     But  In  Hoeffer  v.  Agee.  9  Colo.  Ap.   189,  47 


114  Tilt:    LAW    OF    REPLEVIN. 

tlu'  (U'fendant  may  liuve  a  return  of  the  goods.  But  when  the 
jouit  tonancy  is  pleaded  by  defendant,  it  is  a  matter  of  defense, 
and  is  the  subject  of  proof.  So  when  it  appears  during  the  trial 
that  the  jiarties  own  the  property  jointly,  or  are  partners,  the 
court  will  not  for  that  rea.son  dismiss  tlie  proceeding,  but  will 
leave  it  to  the  jury  as  one  of  the  issues  in  the  case,  and  will  direct 
them,  in  i-ase  they  find  a  joint  tenancy,  that  the  verdict  nuist  be 
found  for  the  defendant.^ 

§  IM.  Replevin  does  not  lie  for  an  undivided  interest. 
Replevin  does  not  lie  for  an  undivided  interest  in  a  chattel,  as  an 
unilivided  part  is  not  susccptil)le  t)f  delivciy  without  the  whole.* 

•Belcher  v.  Van  Duzen,  37  111.  282.  Consult,  also,  Hunt  v.  Chambers, 
1  Zab.  (N.  J.)  620;  Chambers  v.  Hunt,  2  Zab.  (22  N.  .1.)  554;  D'WolfE 
I'.  Harris.  4  Mason  C.  C.  515;   Holton  v.  Binns,  40  Miss.  491. 

*Kindy  v.  Green.  32  Mich.  310;  Price  v.  Talley's  Admr.,  18  Ala.  21; 
Parsans  r.  Boyd,  20  Ala.  112;  Kimball  r.  Thompson,  4  Cush.  (Mass.) 
447;  Hart  r.  Fitzgerald,  2  Mass.  509. 


Pac.  973.  it  was  rejected  where  the  matter  of  the  controversy  was 
hay  in  stack  and  oats  in  the  granary.  And  in  Read  v.  Middleton,  62 
la.  317.  17  N.  W.  532.  the  doctrine  was  held  to  have  no  application 
to  a  crop  of  growing  grain;  and  see  Spooner  v.  Ross,  24  Mo.  Ap.  599; 
Graham  v.  Myers,  74  Ala.  432. 

The  non-joinder  of  a  co-tenant  of  the  plaintiff  can  be  objected  only 
by  plea  in  abatement,  George  v.  McGovern,  83  Wis.  555,  53  N.  W.  899; 
DeWolf  r.  Harris,  4  Mas.  C.  C.  539;  Barnardston  v.  Chapman,  4  East. 
121.  Contra,  it  may  be  pleaded  in  bar  or  made  the  foundation  of  a 
motion  in  arrest  of  judgment.  Hart  v.  Fitzgerald,  2  Mass.  509;  Rein- 
heimer  v.  Hemingway,  35  Pa.  St.  432;  Fay  v.  Duggan,  135  Mass.  242; 
Corcoran  r.  White.  146  Mass.  329.  15  N.  E.  636.  But  where  all  the  goods 
were  separate  property  of  the  plaintiff,  except  one  stack  of  fodder,  the 
defendant's  interest  in  which  was  trifling,  the  court  refused  to  arrest 
the  judgment,  Pritchard's  Admr.  v.  Culver.  2  Harr.  Del.  129.  And  where 
one  tenant  in  common  replevies  from  a  co-tenant,  the  judgment  should 
restore  the  statu  quo  by  returning  the  goods  to  the  defendant,  Boom  v. 
St.  Paul  Co.,  33  Minn.  253,  22  N.  W.  538;  Ingals  v.  Ferguson,  138  Mo. 
358.  39  S.  W.  801.  One  defendant  disclaimed,  the  other  was  defaulted; 
plaintiff  failed  upon  a  technicality.  The  demand  of  the  first  defendant 
that  the  goods  be  returned  to  his  co-defendant  was  rejected.  Sheehan  v. 
Golden.  85  Hun.  462.  33  N.  Y.  Sup.  109;  and  see  Jenkins  v.  Mitchell, 
40  Neb.  604.  59  N.  W.  90.  The  mere  fact  that  defendant  appears  to 
be  tenant  in  common  with  the  plaintiff  will  not  suffice  to  reverse  a  judg- 
ment for  plaintiff,  the  evidence  not  being  preserved  in  the  record; 
because  one  tenant  in  common  may.  notwithstanding  the  common 
tenancy,  be  entitled  to  exclusive  possession,  Deacon  v.  Powers,  57  Ind. 
489. 


JOINT    OWNERS.  145 

The  plaintiff  must  have  an  entire  interest,  or  a  right  to  the  entire 
and  exclusive  possession,  or  his  action  must  fail.*  When  a  party 
claims  only  a  lien  unaccompanied  by  a  right  to  possession,  he  can- 
not maintain  replevin  to  obtain  possession  of  the  property  in 
order  to  enforce  his  lien.* 

§  155.  Owners  of  separate  interests  cannot  join,  but  joint 
owners  must.  Where  several  plaintiffs  claim  several  and  dis- 
tinct rights  in  the  property  they  cannot  join  in  an  action  for  it.^ 
But  where  the  goods  are  the  joint  property  of  several,  all  must 
join  as  plaintiffs  or  replevin  will  fail.  One  joint  owner  cannot 
sue  alone  and  recover  possession  of  the  goods,  even  from  a  third 
party." 

'  Frierson  v.  Frierson.  21  Ala.  549;  Bell  v.  Hogan,  1  Stewart,  (Ala.) 
536;  Miller  v.  Eatman,  11  Ala.  609. 

•Otis  V.  Sill,  8  Barb.  102. 

•Chambers  v.  Hunt,  18  N.  J.  L.  339;  Barry  v.  Rogers,  2  Bibb.  314; 
Hinchman  v.  Patterson,  H.  R.  R.  Co.,  17  N.  J.  Eq.  75;  Owings  v.  Owings, 
1  Kar.  &  Gill.  (Md.)  484;  Glover  v.  Hunnewell,  6  Pick.  222;  Walker  v. 
Fenner,  28  Ala.  373. 

■^McArthur  v.  Lane,  15  Me.  245;  Reinheimer  v.  Hemingway,  35  Pa. 
St.  435;  Demott  v.  Hagerman,  8  Cow.  220;  Coryton  v.  Lithebye,  2 
Saund.  116;  Decker  v.  Livingston,  15  John.  479;  Portland  Bank  v. 
Stubbs,  6  Mass.  422;  D'Wolff  v.  Harris,  4  Mason  C.  C.  515;  Eakin  v. 
Eaken,  63  111.  160;  Colton  v.  Mott,  15  Wend.  619.  Consult  Gilmore  v. 
Wilbur,  12  Pick.  120;  Pickering  v.  Pickering,  11  N.  H.  141. 

[Where  land  is  let  upon  shares  the  landlord  and  tenant  are  ten- 
ants in  common  of  the  crop.  De  Mott  v.  Hagerman,  8  Cow.  220. 
Sale  by  one  tenant  in  common  does  not  cever  a  common  tenancy; 
nor  does  his  tortiously  seizing  the  chattel  and  causing  it  to  be  sold 
on  execution  against  a  stranger,  at  which  sale  he  becomes  the  pur- 
chaser. St.  John  r.  Standring,  2  Johns.  468.  If  one  tenant  in  common 
mortgage  his  interest  to  his  co-tenant  they  still  remain  tenants  in 
common.  A  futile  attempt  by  the  mortgagee  to  foreclose  the  mort- 
gage is  without  effect  to  dissolve  the  common  tenancy,  Kline  r.  Kline, 
49  Mich.  420.  13  N.  W.  800.  Tenants  in  common  of  a  growing  crop 
may  make  a  partial  severance,  as  the  crop  is  gathered,  so  as  to  vest 
in  each  his  share,  in  severalty,  so  far  as  the  division  ijroceeds,  while 
they  remain  tenants  In  common  of  the  residue,  Gafford  v.  Stearns, 
51  Ala.  434.  Sale  of  the  hull  of  a  wrecked  vessel,  vendor  retaining  the 
machinery  and  that  part  of  the  hull  above  the  main  deck.  Vendor 
failed  to  deliver,  and  failed  to  cut  away  or  remove  the  parts  retained. 
It  was  held  vendor  might  replevy;  and  that  the  resorvationH  did  not 
conKtitutP  them  tenants  In  common  so  as  to  prevent  this  remedy. 
Cheney  v.  Eastern  Line,  .Of*  Md.  .'ir)7.  Where  tlie  grain  of  several 
«e|)arat»;  proprietors  Ih  placed  In  an  elevator,  by  consent  of  all,  all 
10 


14G  rilK    LAW    OF    KKPLEVIN. 

§  l;')r».  Action  oy  one  of  two  joint  owners  does  not  lie 
against  a  stranger  for  the  joint  property.  It  does  nutaclmit 
of  tlispiitc  tli:it  OIK'  ti'iiant  in  coimuou  cannot  maintain  replevin 
ajf.iiiist  his  co-tenant.  IJut  the  nuestiiMi  has  been  sugrrested  as  to 
whether  he  could  maintain  the  action  against  a  stranger  who- 
wrongfnlly  took  the  possession.  There  is  no  doubt  that  the  part 
owner  of  chatt<'l  in  his  possession  niay  support  tlu^  action  against 
one  wiu),  without  right,  should  forcibly  disi)ossess  him.  It  is 
true,  also,  that  one  of  two  joint  tenants  is  owner  of  the  half  of 
th«^  whole,  and  as  against  all  but  his  co-tenant  would  seem  to 
have  a  better  right  to  the  exclusive  possession  than  any  stranger  ; 
but  it  must  be  remembered  that  his  right  extends  only  to  half, 
and  not  to  the  whole,  and  that  as  against  a  stranger  in  j^os-session 
he  has  no  greatcn*  rights  to  his  co-tenant's  interest  than  any  other 
third  person.  Therefore,  when  he  relies  on  his  title,  and  not  on 
his  prior  possession,  his  title  will  not  avail  in  action  against  a 
stranger.  The  case  of  Sdnnartz  v.  ,Ski>nier,  47  Cal.  6,  and  the 
dicta  in  />'  Wolf  v.  JL/rn's,  4  ^lason,  C.  C,  515,  may  be  quoted 
against  these  views  ;  but  the  former  Avas  decided  under  a  special 
statute,  and  tin;  latter  is  mere  dicta,  and  the  entire  current  of  au- 
thority is  the  other  way.® 

•Chambers  v.  Hunt,  18  X.  J.  L.  339;  Hunt  v.  Chambers,  1  Zab. 
(N.  J.)  623;  Barnes  v.  Barlett.  15  Pick.  75;  M'Eldery  v.  Flannagan,  1 
Har.  &  G.  (Md.)  308;  Russell  v.  Allen,  3  Kern,  (N.  Y.)  178;  Wilson  v. 
Gray,  8  Watts.  35;  Deacon  v.  Powers,  57  Ind.  489.  Where  the  property 
is  admitted  to  be  in  the  plaintiff  by  the  pleading,  and  the  joint  owner- 
ship is  not  made  a  ground  of  defense,  the  rule  cannot  be  enforced — Tell 
V.  Beyer,  38  N.  Y.  161 — and  when  one  joint  tenant  sells  a  stranger 
the  right  to  cut  timber  off  the  common  property,  the  other  cannot 
succeed  in  replevin  for  the  timber  after  it  is  cut.  Alford  v.  Bradeen, 
1  Nev.  228.  [The  following  cases  agree  with  the  doctrine  of  the  text, 
George  v.  McGovern,  83  Wis.  559.  53  N.  W.  899;  Upham  v.  Allen,  73 
Mo.  Ap.  224;  but  in  McArthur  v.  Oliver,  60  Mich.  605,  27  N.  W.  C89. 
it  was  held  that  one  tenant  in  common  may  recover  in  replevin 
against  a  wrongdoer,  who  is  a  stranger  to  the  title.  And  se  Chaffee 
V.  Harrington,  60  Vt.  718,  15  Atl.  350.     And  bailee  of  one  of  the  ten- 


become  tenants  in  common  in  proportion  to  their  respective  interests, 
Forbes  v.  Fitchburg  Co.,  133  Mass.  159. 

Where  tenant  in  common  purchases  the  interest  of  his  co-tenant, 
the  price  to  be  paid  in  installments,  and  with  proviso  that  the  sale 
shall  be  void  if  default  be  made  in  any  payment,  upon  such  default 
and  the  election  of  the  seller  to  terminate  the  sale,  they  remain 
tenants  in  common,  Kehoe  v.  McConaghy,  29  Wash.  175,  69  Pac.  742.] 


JOINT    OWNERS.  147 

§  157.  The  same  ;  illustrations  of  the  rule.  Whore  a  land- 
lord agreed  to  receive  part  of  the  crop  for  his  rent,  to  be  har- 
vested and  delivered  to  him  in  the  crih,  it  was  levied  on  as  the 
property  of  the  tenant  while  in  the  field.  Ileld^  the  landlord 
could  not  sustain  replevin  for  his  share  prior  to  a  division."     So 

ants  in  common  cannot  refuse  the  demand  of  the  bailor  asserting 
claim  under  the  other  tenant  in  common,  Pulliam  v.  Burlingame,  81 
Mo.  Ill,  51  Am.  Rep.  229.] 

"Sargent  v.  Courrier,  66  111.  245.  The  same  rule  was  applied  in 
Indiana.  Lacy  v.  Weaver,  49  Ind.  376;  Williams  v.  Smith,  7  Ind. 
559;    Lindley  v.  Kelley,  42   Ind.   294. 

[A  stipulation  that  the  crops  shall  remain  the  property  of  the  land- 
lord, is  valid  as  between  the  parties  and  as  to  all  who  have  notice 
of  it,  Summerville  v.  Stockton  Co..  142  Calif.  529,  76  Pac.  243;  and  the 
record   of  the  lease  is  notice.   Id. 

Where,  by  the  terms  of  a  farm  lease,  the  landlord  retains  title  to 
the  whole  crop,  agreeing  merely  to  deliver  to  the  tenant  a  share  thereof 
upon  performance  by  him  of  his  covenants,  he  may  maintain  replevin 
for  the  whole  product  of  the  farm  against  the  tenant's  assignee,  even 
though  the  latter  purchased  in  good  faith  and  without  notice  of  the 
landlord's  right,  Angell  v.  Egger,  6  N.  D.  391,  71  N.  W.  547.  Tenant's 
only  remedy,  if  the  landlord  refuse  to  divide  the  crop,  according  to 
the  terras  of  the  lease,  is  by  bill  in  equity;  he  cannot  maintain  replevin, 
Angell  V.  Egger,  supra. 

The  landowner  who  employs  another  to  plant  and  cultivate  a  crop 
Under  his  direction,  and  harvest  and  store  it,  agreeing  to  allow  him 
at  the  completion  of  the  contract  one-half  of  the  grain  raised,  after 
deducting  advances  made  in  the  meantime,  is  the  sole  owner  of  the 
crop  until  he  shall  have  set  apart  to  the  other  the  share  to  which  he 
is  entitled.  Porter  v.  Chandler,  27  Minn.  301,  7  N.  W.  142.  An  agree- 
ment to  divide  the  crop  in  kind  does  not  make  a  partnership,  Beatty  v. 
Clarkson,  Mo.  Ap.  83  S.  W.  1033.  Where  lands  are  let  upon  shares, 
and  the  tenant  denies  the  landlord's  right  and  refuses  to  divide  the 
crop,  the  landlord  may  at  once  maintain  replevin  for  his  share,  the 
crop  being  then  matured  and  the  harvest  commenced;  wheat  in  the 
head  or  in  stack  is,  nevertheless  wheat,  and  may  be  rei)levied  as 
such;  the  writ  may  des(;ribe  it  as  so  many  bushels,  tiie  sheriff  making 
the  division  at  the  threshing.  An  over-estimate  of  the  number  of 
buHheis  will  not  defeat  the  action.  Wattles  v.  Dubois.  67  Mich.  313. 
34  N.  W.  672. 

Where  lands  are  leased  upon  sluires,  the  tenant  is  not  rcnuired  to 
clean  and  divide  the  grain  unless  so  stipulated,  Thomas  v.  Wllliartjs. 
32  Hun.  257.  F^ven  If  the  lease  so  provide,  the  tenant's  refusal  is  not 
a  converHlon  of  the  landlord's  moiety.  Id.  'Vhv  landlord  (iinuot  main- 
tain replevin  until  divlKion.  Bowen  v.  Roach.  7.S  Inil.  lit'.l.  C'rcMlltors 
of  the  tenant  may  not  levy  ou  the  whole  crop,  to  the  exclusion  of  the 


148  TllC    LAW    OF    REPLEVIN. 

where  a  jtarty  purchased  land,  and  heing  unable  to  pay  for  it 
agreed  t(»  deliver  a  part  of  the  crop  for  the  use,  hut  afterwards 
refused  to  do  so,  and  was  hauling  (he  grain  to  the  market 
and  storing  it  in  his  own  name  and  the  names  of  other  parties; 
the  landlord  brought  a  bill  to  restrain  all  the  parties,  which  was 
helil  the  iiro[)t'r  remedy  in  such  case.  The  plaintiff  could  not 
maintain  re{)levin  for  an  undivided  portion  of  the  corn;  Ins  oidy 
remedy  was  held  Ity  bill  in  ecjuity." 

§  158.  Landlord  reserving  a  share  of  the  crop  cannot 
sustain  replevin  until  his  share  is  set  apart.  Where  a  tenant 
agrtM's  to  deliver  a  share  of  the  crop  for  his  rent  the  landlord 
cannot  sustain  replevin  for  any  portion  until  his  share  has  been 
a.scertained  and  set  apart  or  separated  from  the  tenant's."  But 
when  the  grain  was  harvested  and  i)ut  in  the  barn,  and  the  tenant 
divided  and  took  away  his  share,  leaving  the  landlord's,  it  was 
held  a  suflRcient  division  of  the  crops  to  enable  the  latter  to  main- 
tain re})levin  for  his  share." 

§  159.  Death  of  one  partner,  who  entitled  to  the  partner- 
ship property.  On  the  death  of  one  of  two  partners  the  part- 
nership is  dissolved.  In  some  of  the  States  the  survivor  is  en- 
titled to  retain  possession  of  the  partnership  effects ;  and  in  such 
case,  upon  conforming  to  such  regulations  as  the  statutes  provide 
concerning  an  account,  he  is  entitled  to  the  possession  of  all  the 
chattels  belonging  to  the  firm,  and  may  bring  replevin  for  them. 
In  other  States  the  property  of  the  deceased  member  of  a  firm 
goes  to  his  administrator,  '*  and  in  such  case  the  surviving 
partner  having  only  a  joint  interest  cannot,  upon  that  title,  sus- 
tain replevin. 

"  Parker  v.  Garrison,  61  111.  251. 

"Lacy  V.  Weaver,  49  Ind.  373;  Williams  v.  Smith,  7  Ind.  559;  ChiS- 
som  V.  Hawkins,  11  Ind.  316;  Fowler  v.  Hawkins,  17  Ind.  211;  Sar- 
gent V.  Courrier,  fiC  111.  245;  Alwood  v.  Ruckman,  21  111.  200;  Dixon  v: 
Niccolls,  39  111.  372;  Daniels  v.  Brown,  34  N.  H.  454. 

"Burns  v.  Cooper,  31  Pa.  St.  429. 

"Putnam  v.  Parker,  55  Me.  236. 


landlord;  the  latter  may  in  such  case  replevy  his  share,  Atkins  v. 
Womeldorf,  53  la.  150,  4  N.  W.  905.  The  tenant  may  remove  the  fix- 
tures which  he  has  erected  for  the  enjoyment  of  the  premises,  pend- 
ing a  proceeding  to  take  the  land  for  a  public  improvement,  Schrei- 
ber  r.  Chicago  Co.,  115  Ills.  340,  3  N.  E.  427;  fixtures  of  this  character 
nre  fhattel  property  and  may  be  replevied  by  the  mortgagee  of  the  ten- 
ant from  the  landlord,  Hewett  v.  Watertown  Co.,  65  Ills.  Ap.  153. 


JOINT    OWNERS.  149 

§  160.  The  same.  Joint  tenancy,  how  pleaded.  Where 
the  plaintiff  fails  to  establish  his  right  to  the  possession  exclu- 
sively in  himself,  he  cannot  succeed.  The  joint  tenancy  of  others 
may  be  pleaded  in  abatement  or  may  be  taken  advantage  of  on 
the  trial,  under  a  plea  in  bar  setting  up  that  fact.'* 

§  IGl.  By  agreement  of  all  joint  owners,  the  right  to 
possession  may  be  in  one.  When  by  the  agreement  of  all  the 
joint  owners,  the  right  to  the  possession  is  vested  exclusively  in 
one  of  them,  he  may  replevy  Avith  success  even  against  his  co- 
tenant's.'*  Where  the  property  was  the  equipment  of  a  whaling 
vessel,  and  the  master  had  the  exclusive  right  to  possession  dur- 
ing the  voyage,  but  after  the  return  the  general  agent,  whose 
right  and  duty  it  was,  under  the  contract  with  all  the  owners,  to 
take  charge  of  the  stores  and  dispose  of  them,  had  the  right  to 
possession,  the  latter  could  sustain  replevin  against  anyone  who 
•should  interfere  with  his  possession.''  When  the  partnership 
was  for  the  manufacture  of  saddles,  and  one  partner  was  to  fur- 
nish all  the  stock  and  the  other  to  do  the  work,  the  partner  own- 
ing the  stock  might  replevy  it  from  an  officer  who  seized  it  on 
process  against  the  working  partner  before  any  w'ork  was  done 
on  it.'" 

§  162.  The  severance  of  the  joint  tenancy  by  agreement. 
The  severance  of  the  joint  tenancy  so  that  any  allotted  part  is 
set  off  to  either,  will  vest  in  him  such  a  title  as  will  enable  him 
to  sustain  replevin.  So  when  a  certiiin  part  of  a  cargo  was  sold 
by  consent  of  all  the  joint  tenants,  the  purchaser  was  entitled  to 
bring  replevin." 

§  163.  Severance  by  the  act  of  one  joint  tenant.  The 
question  sometimes  arises  how  far  a  joint  tenancy  in  chattels  can 
be  severed  by  the  act  of  one  of  the  joint  owners.  In  a  case  where 
the  parties  owned  a  num])er  of  bags  of  coffee,  not  in  any  way  distin- 
guished by  marks  or  otherwise,  the  court  said  each  one  might 
liave  taken  the  number  of  bags  which  belonged  to  him  by  his  own 

"Relnheltner  v.  Hemingway,  ?,r,  Pa.  St.  43r);  Cullum  v.  Bovans.  (!  liar. 
&  J.  (Md.)  4C9;  Harrison  r.  M'Intosli,  1  .John.  380;  Chambers  v.  Hunt, 
3  Har.  (18  N.  J.)  339;  Marsh  v.  Pior.  4  Rawle.  273.  Consult  D'Wolf  v. 
HarrlB,  4  Mason,  C.  C.  515;   Addison  v.  Overend.  G  Term.  R.  357,  766. 

'•Newton  v.  Gardner,  24  Wis.  232;   Corbett  v.  Lewis.  53  Pa.  St.  331. 

"Rich  V.  Ryder.  105  Mass.  307. 

"Boynton    v.    PuRe,    13    Wend.    425. 

"SeldoD  V.  Hickotk,  2  (Cain's  Ca.)  N.  Y.  Term  R.  1C6. 


liiU  THE    LAW    OK    REPLEVIN. 

selection."'  Wlicrc  tin-  property,  consisting  of  grain,  raised  and 
owned  jointly  l»y  two,  wa.s  put  into  two  cribs,  containing  equal 
j)ortions,  and  each  tenant  had  a  key  to  one  of  tlie  cribs  with  the 
right  to  feed  therefrom,  there  was  not  such  a  separation  as  would 
justify  an  action  on  the  part  of  either  aj^ainst  the  otlier,*'  there 
being  no  formal  settlement  of  division.  IJut  where  a  party  pur- 
chases goods  in  bulk,  and  the  separation  depends  on  his  own 
selection,  he  may,  by  making  his  selection,  have  the  absolute 
property  in  the  jiart  so  selected  by  him.-'*'  And  where  the  joint 
property  is  of  such  a  nature  that  one  may  take  his  share  without 
in  any  way  atlVcting  the  value  of  that  remaining,  eases  can  be 
found  which  say  he  may  do  so  without  consent  of  his  co-tenants." 

§  1C»4.  Purchaser  of  a  joint  tenant's  interest  at  sheriffs 
sale.  Where  the  interest  of  one  partner  is  sold  by  the  sheriff  or 
executor,  the  purchaser  becomes  a  quasi  tenant  in  common  with 
the  other  partners  so  far  as  to  entitle  him  to  an  account,  but  not 
to  tlie  exclusive  possession  of  any  i)art  of  the  property,  and  re- 
plevin by  such  purchaser  would  fail.-'* 

§  1G5.  Sale  by  one  partner  of  his  interest  in  goods. 
"When  one  partner  sells  his  interest  to  a  stranger,  the  i)urchaser 
<'annot  sustain  replevin  on  the  refusal  of  the  other  partner  to  ad- 
mit him  into  partnership.  The  sale  was  a  dissolution  of  the 
partnership,  and  the  continuing  memb(;r  was  not  compelled  to 
admit  the  purchaser  into  partnership  with  him." 

§  l(3t>.  An  officer  with  process  against  one  member  of  a 
firm  may  seize  all  the  partnership  goods.  The  rule  is  settled 
that  a  slieritf  with  process  against  one  member  of  a  firm,  may 
levy  upon  the  interest  of  that  member  in  partnership  property, 
and  may  sell  such  partner's  interest.'*  Partnership  accounts  can- 
not l)e  settled  in  replevin." 

§  1G7.  The  same.  Where  there  is  a  judgment  against  one 
partner  and  an  execution  issues  thereon,  the  officer  cannot  seize  a 
part  of  the  partnership  property  ;  he  must  seize  the  entire  prop- 
erty subject  to  levy  and  must  take  and  retain  the  custody  thereof. 

™  Gardner  v.  Dutch,  9  Mass.  427.     But,  see  editor's  note  to  this  case. 

"  Usry  V.  Rainwater,  40  Geo.  328. 

"Clark  r.  Griffiths,  24  N.  Y.  596;   McLaughlin  v.  Piatti,  27  Cal.  4.52. 

"Forbes  v.  Shattuck.  22  Barb.  568;  Tripp  v.  Riley,  15  Barb.  334. 

"Reinheimer  v.   Hemingway,  35  Pa.   St.   435. 

"Reece  v.  Hoyt,   4  Port.    (Ind.)    169. 

"Waldman  v.  Broder,  10  Cal.  378;  Scrugham  v.  Carter,  12  Wend.  131 

"Chandler  v.  Lincoln,  52  111.  76. 


JOINT    OV.'XERS.  151 

This  rule  seems  to  arise  from  the  necessities  of  the  case.  The 
oflBcer  cannot  in  any  other  way  take  possession  of  the  property 
subject  to  levy  and  sale.  And  while  the  law  does  not  permit  the 
sale  of  more  than  the  interest  of  the  part}''  against  whom  the  exe- 
cution runs,  the  interests  of  the  other  partner  must  so  far  yield 
as  toiiermit  the  possession  of  the  whole  long  enough  for  the  sale 
of  the  undivided  interest  of  the  execution  debtor  who  is  part 
owner,  and  the  other  partner  cannot  sustain  replevin.'®  The  in- 
terest of  a  partner  is  not  to  be  regarded  as  a  specific  share  in  the 
goods  owned  by  them,  but  rather  an  interest  in  the  surplus  after 
the  firm  debts  are  paid.-" 

-^Branch  v.  Wiseman,  51  Ind.  1;  Ladd  v.  Billings,  5  Mass.  15;  Haydon 
V.  Haydon,  1  Salk.  392;  Shaver  v.  White,  6  Munford,  (Va.)  110; 
Mersereau  v.  Norton,  15  Johns.  179;  Skipp  v.  Harwood,  2  Swanst.  586; 
Johnson  v.  Evans,  7  Man.  &  G.  240;  Whitney  v.  Ladd,  10  Vt.  1G5;  Rem- 
mington  v.  Cady,  10  Conn.  44;  Lawrence  v.  Burnham,  4  Nev.  361;  Rapp 
V.  Vogel,  45  Mo.  524;  Goll  v.  Hinton,  8  Abb.  Pr.  120;  James  v.  Stratton, 
32  111.  202;  White  v.  Jones,  38  111.  159;  Sanders  v.  Young,  31  Miss. 
Ill;  Bernal  v.  Hovious,  17  Cal.  541;  Hardy  v.  Donellan,  33  Ind.  501; 
Moore  v.  Sample,  3  Ala.  319.  See  Jones  v.  Thompson,  12  Cal.  191; 
Walsh  V.  Adams,  3  Denio,  125.  But,  compare  these  cases  with  Tread- 
well  V.  Brown,  43  N.  H.  290;  Gibson  v.  Stevens,  7  N.  H.  353;  Morrison 
V.  Blodgett.  8  N.  H.  238;  Newman  v.  Bean,  21  N.  H.  93;  Crockett  v. 
Crjiin,  33  N.  H.  548. 

"Garvin  v.  Paul,  47  N.  H.  163. 


152 


THE    LAW    OF    KEPLEVIN. 


CHAPTER  VII. 


DESCRIPTION,  IDENTITY  OF  THE  GOODS. 


Section. 

Plaintiff  must  prove  himself  to 
be  the  owiut  of  the  identical 
property  sued  for     .         .         .  1G8 

Tiie  writ  must  describe  the  prop- 
erty particularly      .        .         .  169 

The  prop«;rty  must  be  capable 
of  delivery        ....  170 

Strictnes.s  of  the  rule  in  regard 
to  description,  and  the  reason 
for  it 171 

The  same.  A  description  good 
in  trespass  or  trover  not  suffi- 
cient in  replevin      .        .        .  172 

The  same 173 

The  same 174 

When  tlie  sufficiency  of  descrip- 
tion is  a  (piestion  for  the  jury  175 

Synonymous  descriptions.  Il- 
lustrations of,  and  when  al- 
lowable    .....  170 

The  rule  as  to  certainty  of  de- 
scription   177 

The  same     .....  178 

Description  of  numerous  arti- 
cles, a-s  the  goods  in  a  store     .  179 

Descriptions  which  may  refer 
to  kind  or  quantity         .         .  180 

A  quantity  described  as  "about" 
so  much 181 


Section. 

The  proof  as  to  description 
must  correspond  with  the 
writ  ...... 

Exact  quantity  need  not  be 
given  where  the  particular 
property  is  indicated 

Writ  of  return  and  verdict  may 
follow  declaration  as  to  de- 
scription ..... 

When  objections  to  the  insuffi- 
ciency of  description  must  be 
taken        

Replevin  does  not  lie  for  goods 
sold,  unless  they  are  in  some 
way  separated  from  all  others 
or  identified     .... 

The  same     ..... 

Tiie  same 

Tlie  same     ..... 

The  .same.  Selection  by  the  pur- 
chaser, when  sufficient  . 

The  same 

Property  acquired  by  verbal  gift 
without  delivery 

The  general  rule  applicable  in 
these  cases       .... 

Symbolic  delivery 

Goods  distinguished  by  marks 
or  by  separation      .        .         .  195 


182 


183 


184 


185 


186 
187 
188 
189 

190 
191 

192 

193 
194 


§  168.  Plaintiff  must  prove  himself  to  be  the  owner  of 
the  identical  property  sued  for.  It  is  an  infiexi])le  rule  in  re- 
plevin that  the  plaintiff  must  show  himself  to  be  the  owner  of 
the  identical  articles  for  which  the  suit  is  brought,  or  that  he  is 


DESCRIPTION',    IDENTITY    OF    THE    GOODS.  153 

entitled  to  their  immediate  possession.  It  is  not  sufficient  tliat 
he  own  goods  of  like  description  and  value  ;  he  must  show  that 
the  identical  property  described  in  the  writ  and  pleadings  is  his, 
and  also  that  the  articles  can  be  distinguished  and  separated  from 
all  others,  or  he  will  fail  in  his  nction.'  The  few  exceptions  to 
this  rule  are  in  cases  where  identification  is  impossible  and  of  no 
importance.     They  will  be  noted  hereafter. 

§  169.  The  writ  must  describe  the  property  particularly. 
The  writ  must  specify  the  particular  property  to  be  replevied. - 
Thus,  when  the  property  was  described  as  "Buckwheat,  valued 
at  three  hundred  dollar.s,"  or  "Sweet  potatoes  valued  at  thirty- 
nine  dollars,"  or  "  About  ten  acres  of  potatoes,"  or  "  Four  acres 
of  squash,"  there  was  a  failure  to  identify  the  property,  or  to 
furnish  any  means  by  which  it  could  be  ascertained,  and  the  writ 
failed.'  But  where  the  sheriff  levied  on  coin  which  was  by  con- 
sent and  for  convenience  exchanged  for  bank  bills,  this  alteration 
was  held  not  to  prejudice  the  rights  of  a  stranger  to  the  proceed- 
ing who  claimed  to  own  the  money  and  sought  to  recover  the 
bills  in  replevin.* 

§  170.  The  property  must  be  capable  of  delivery.  The 
property  must  be  in  esse,  and  in  such  form  of  existence  that  it 
may  be  the  subject  of  delivery.  "Where  a  colt,  the  expected 
progeny  of  a  mare  owned  by  another,  was  the  subject  of  dispute, 
replevin  was  not  the  proper  form  of  action.^  Xeither  would  the 
action  lie  for  a  slave  who  was  dead  at  the  time  of  the  commence- 
ment of  the  suit,*  or  for  property  destroyed  before  the  suit  was 

'3  Bla.  Com.  145;  1  Ch.  Pleadings,  1G3;  Hurd  v.  West,  7  Cow.  752; 
Snyder  v.  Vaux,  2  Rawle,  (Pa.)  423;  Ames  v.  Miss.  Boom  Co.,  8  Minn. 
470. 

'Snedeker  v.  Quick,  (0  Halst.)  11  N.  J.  179;  Pope  v.  Tillman,  7 
Taunt.  G42;  Davis  v.  Easley,  13  111.  192. 

•Welch  V.  Smith,  45  Cal.  230.  Reasonable  certainty  must  be  used 
in  the  description.  Root  v.  Woodruff,  G  Hill,  (N.  Y.)  418;  Snyder  v. 
Vaux,  2  Rawle,  427;  Kaufman  v.  Schilling,  58  Mo.  219;  Gray  v.  Parker. 
38  Mo.  ICO;  Ryder  v.  Hathaway,  21  Pick.  305;  Hart  v.  Fitzgerald,  2 
MasB.  509;  Carlton  v.  Davis,  8  Allen,  (Mass.)  94;  Low  v.  Martin,  18 
HI.  286;  Reese  v.  HarriK,  27  Ala.  300;  Stevens  v.  O.sinan,  1  Mi<h.  92; 
Farwell  v.  Fox.  18  Mich.  1G9;  Stanchfleld  v.  Palmer.  4  C,  Greene, 
(Iowa,)  25;  Urown  r.  Sax,  7  Cow.  95;  Heard  v.  .lames.  49  Miss.  245; 
Root  V.  Woodruff,  G  Hill,  424;  Smith  v.  Sanborn,  C  Gray,  134;  Dodge  v. 
Brown,  22  Mich.  449. 

*8t.  Louis  &  Alton  R.  R.  v.  Castello.  28  Mo.  380. 

•McCarty  v.  RlovlnH.  5  Yerger,   (Tenn.)   19fi. 

•Caldwell  v.  Fenwjck.  2  Dana.  (Ky.)   333. 


154  tup:    l.AW    OF    RKPLEVIN. 

begun.'  In  tlifse  iuid  similar  cases,  where  the  property  is  not 
in  existont'O  at  the  time  the  suit  is  conniionced,  there  can  be  no 
ileUvrry,  and  for  that  reason  rei)levin  is  not  the  proper  form  of 
Action."  Some  novel  and  intricate  questions  will  arise  under  this 
head  touching  the  separation  of  goods  purchased  from  ])ulk,  the 
mixture  or  confusioti  of  goods  belonging  to  different  owners,  the 
change  of  form  which  goods  may  undergo  in  the  hands  of  the 
defendant,  the  effect  which  these  conditions  may  have  upon  the 
rights  of  the  several  parties  claimant,  as  well  as  in  relation  to  the 
description  of  the  goods. 

§  171.  Strictness  of  the  rule  in  regard  to  description 
and  the  reasons  for  it.  An  exceedingly  strict  practice  prevails 
as  to  the  description  of  the  chattels  sued  for.  The  rule  is,  that 
tlie  property  nnist  be  particularly  described,  not  simply  by  the 
number  and  class  of  articles,  but  that  each  article,  where  this 
is  jiracticable,  be  so  described  that  it  can  be  identified  and  de- 
livered by  reference  to  the  description  only.  Thus,  where  the 
property  is  described  as  "  six  oxen,"  it  is  not  sufficient.  If  they 
be  called  "six  red  oxen,"  this  would  confine  the  selection  to  a 
cliiss — that  is,  to  "  red  oxen  " ;  but  it  would  still  be  uncertain 
which  "red  oxen"  were  intended.  To  obviate  this,  the  size,  age, 
marks  of  spots,  if  any,  and  the  place  where  they  are,  should  be 
stated,  with  any  other  particulars  that  would  lead  to  their  identi- 
fication,' the  object  being  not  only  to  apprise  the  defendant 
what  property  the  i)laintiff  will  assert  title  to,  but  to  indicate  to 
the  olficer  the  property  which  he  is  to  seize  and  deliver  under  the 
writ,  so  that  there  may  be  no  doubt  or  uncertainty  : '"  for  ex- 
ample, "  fifteen  hundred  pounds  of  cotton  seed "  was  held  suf- 
ficient to  describe  the  substance  and  quantity  ;  but  something 
further  should  have  been  added,  as  that  it  was  in  such  a  house 
or  place,  to  enable  the  officer  to  find  and  identify  it  from  the  writ." 

"Burr  V.   Daugherty,  21   Ark.   559. 

'  Lindsey  v.  Perry,  1  Ala.  (n.  s.)  203;  Chissom  v.  Hawkins,  11  Ind. 
318.  See  Otis  v.  Sill,  8  Barb.  102,  for  an  interesting  case  of  sale  of 
property  not  in  esse. 

•Far\-ell  v.  Fox,  18  Mich.  169;  Stevens  v.  Osman,  1  Mich.  92;  Wilson 
V.  Gray,  8  Watts,  (Pa.)  39.  In  Indiana,  a  description,  "one  white 
shoat,  of  the  value  of  fourteen  dollars,"  was  held  sufficient.  Onstatt  v. 
Ream,  30  Ind.  259.  But  this  evidently  falls  short  of  the  exactness 
usually  required.     Compare  Dowell  v.  Richardson,  10  Ind.  573. 

'•Ruch  V.   Morris,  28  Pa.  St.  245. 

"Hill  V.  Robinson,  IG  Ark.  SO. 


DESCRIPTION.    IDENTITY    OF    THE    GOODS.  155 

§  172.  The  same.  A  description  good  in  trespass  or  tro- 
ver not  sufficient  in  replevin.  A  description  wliieli  is  perfectly 
good  in  detinue,  trover  or  trespass  is  not  necessarily  good  in  re- 
plevin. The  distinction  is,  that  in  those  actions  the  goods  them- 
selves are  not  in  dispute,  simply  tlieir  value,  while  in  replevin 
the  identity  of  the  property  often  forms  the  chief  question  in 
controversy ;  and,  while  it  would  be  competent  for  a  plaintiff  to 
recover  the  value  of  a  "  red  ox  "  in  trover,  yet  that  description 
would  not  be  sufficient  in  an  action  for  replevin. '- 

§  173.  The  same.  Illustrations  of  the  rule.  "  Divers  goods 
and  chattels  ; " '  ■  or,  "  a  quantity  of  corn,  about  two  hundred 
bushels  ;  '"*  or,  "  a  lot  of  goods  in  the  store  of  A.,"  '*  would  not  be 
sufficient  description  in  replevin,  though  perhaps  they  would  be 
in  trover.  In  an  action  of  trover  for  "forty  ounces  of  mace, 
nutmegs  and  cloves,"  without  saying  how  much  of  either,  the 
description  was  held  sufficient,  but  would  not  have  been  in  re- 
plevin."' So,  "  fourteen  skimmers  and  ladles,  and  three  pots," 
is  faulty  in  replevin,  but  might  not  be  in  trespass  or  trover; "but 
a  box  of  skins  and  furs  marked  "J.  Windor,  Logansport,  Ind, " 
is  sufficient.'*  And  the  general  rule  is,  that  a  description  which 
will  enable  the  sheriff,  aided  by  inquiries,  to  identify  the  prop- 
erty, will  be  sufficient  to  support  the  action.'* 

'^'Kinaston  v.  Moor,  Cro.  Car.  89;  Farwell  v.  Fox,  18  Mich.  169;  Tay- 
lor V.  Wells,  1  Mod.  46;  Gordon  v.  Hostetter,  37  N.  Y.  103;  Hartford  v. 
Jones,  2  Salk.  654.  The  declaration  ought  to  be  accurate  in  setting 
up  the  number,  kind  and  description  of  the  cattle.  Bull  N.  P.  52; 
Neiler  v.  Kelley,  69  Pa.  St.  407;  Wood  v.  Davis,  1  Mod.  290. 

"Pope  V.  Tillman,  7  Taunt.  642;  Warner  v.  Aughenbaugh,  15  S.  &  R. 
(Pa.)    9. 

"Stevens  v.  Osman,  1  Mich.  92. 

"Edgerly  v.  Emerson,  3  Foster,   (23  N.  H.)   j&5. 

'•  Hartford   v.  Jones,   2  Salk.  651. 

"Bern  v.  Mattaire,  Ca.  Temp.  H.  119. 

»  .Minchrod  v.  WIndoes,  29  Ind.  288. 

'•.More  V.  Clypsam,  Aleyn,  33;  Same  v.  Same,  Sty.  71;  Smith  v.  Mc- 
lyean,  24  Iowa.  324;  Lawrence  v.  Coates.  7  Ohio  St.  194;  Buckley  v. 
Buckley.  9  Nev.  379. 

NoTK  X.  iJfHcrijjtiun  of  (hi-  Goods. — A  description  of  tlif  Koods  with 
reasonable  lertalnty.  is  sufflclent,  Fordice  v.  Rinohart,  11  Ore.  210,  8 
Par.  285.  A  description  which  enables  the  officer  by  inquiry  to  identify 
the  sioodB.  Sexton  v.  McDow.l,  38  Mich.  148. 

Without  such  description  the  court  should  not  proceed  to  a  JuiIr- 
ment,  McElhannon  v.   P'armers  Alliance  Co.,  95  Ga.  670.  22  8.   E.   686. 

The  foliowluK  (!«'HcrlptlonH  have  iM-en  held  Hufflcleiit:  "One  hun- 
dred busbelB  of  wheat  harvested  on  the  28th  of  July,  1885.  and  Krowa 


166  THE    LAW    OF    REPLEVIN. 

§  174.  The  same.  "  AH  artit-les  of  household  furniture  now 
conUiini'd   in   s;iid   house,  (describing   it,)   consisting  of   carpets^ 

upon  and  threshed  from  '"  certain  described  lands.  Hall  v.  Durham, 
117  Ind.  430.  20  N.  E.  282.  "One  hundred  cords  of  shingle  bolts,  and 
all  cedar  timber  situated  upon  "  particular  land  in  a  county  named, 
Casey  i'.  Malidore.  19  Wash.  279,  53  Pac.  60.  "A  quantity  of  wheat, 
rye  and  oats,  beinp  one-half  the  grain  grown  on  the  Simmons  farm 
in  the  year  1892,"  Simmons  v.  Robinson,  101  Mich.  240.  .59  N.  W.  623. 
"  One  lot  of  wheat  being  one-third  of  seventeen-thirty-seconds  of 
wheat  raised  by  John  Humphrey  on  the  old  Bayn  farm  in  Spring  Arbor, 
the  share  of  William  Bayn  of  the  crop  coming  to  him,"  Humphrey  v. 
Bayn,  45  Mich.  565.  8  N.  W.  556.  "  About  two  hundred  thousand  feet 
of  pine  and  hemlock  lumber  and  three  hundred  cords  of  slabs,"  Dillon 
r.  Howe,  98  Mich.  168,  57  N.  W.  102.  "Sixteen  and  two-fifteenths 
barrels  of  flour,  in  sacks,  part  branded  with  Caveness  &  Sterling's 
brand.  Island  City  Mills,  and  the  others  marked  with  the  brand  of  the 
mill  at  Weston."  Fordice  v.  Rinehart,  supra.  "  One  cow  seven  years 
old,  two  yearlings,  red  and  white,"  Kelso  v.  Saxton,  40  Mich.  666. 
"  Sufficient  of  the  boots  and  shoes  now  in  "  a  certain  store  named, 
"  to  satisfy  the  claim  of  plaintiff  as  mortgagee  of  said  goods,  amount- 
ing to  $805."  Pingree  v.  Steere,  68  Mich.  204,  35  N.  W.  905.  "  Six  oxen," 
Farwell  r.  Fox,  18  Mich.  166.  "  One  blaze  face  cream-colored  mare 
eight  or  nine  years  old."  King  v.  Conevey,  52  Ark.  115,  12  S.  W.  203. 
"  Lawful  money  of  the  United  States  consisting  of  one  hundred  silver 
certificates  of  $5  each,  one  hundred  fifty  national  bank-notes  each 
for  $10,  and  sixty-five  treasury  notes  each  for  $20,  Farmers  Alliance 
Co.  V.  McElhannon,  98  Ga.  394,  25  S.  E.  558. 

A  description  of  three  hundred  articles  as  "  two  Poland  China  piga, 
two  months  old,  thirty-three  chickens,  two  bedsteads,  spiral  springs, 
four  cords  shingle  wood,  a  lot  of  hardware,  ...  all  the  furniture  and 
carpets  in  a  hotel  building  recently  occupied  by  me  and  formerly 
owned  by  "  parties  named,  Peterson  v.  Fowler,  76  Mich.  258,  43  N.  W. 
10.  "  All  the  coal  now  in  "  two  certain  buildings  described,  "  about 
fifteen  hundred  bushels,"  Cain  v.  Cody,  Calif.  29  Pac.  778.  "  The  good 
will,  fixtures,  furniture  and  stock  in  trade  of  the  drug  business  now 
carried  on  in  the  name  of  etc.,  on  the  Southwest  corner  of  Clinton  & 
Mulberry  streets  in  the  city  of  Newark,"  Kraemer  v.  Kraemer  Drug 
Co.,  59  N.  J.  L.  9,  35  Atl.  791.  "  One  white  shoat,"  Onstatt  v.  Ream, 
30  Ind.  259.  "  A  box  of  skins  and  furs  marked  J.  W.  Logansport, 
Indo,"  Minchrod  v.  Windoes,  29  Ind.  288.  "  One  stock  of  dry-goods, 
notions,  fancy  goods,  etc.,  now  in  store  occupied  by  them  on  Main 
street  in  Valparaiso,"  Malone  v.  Stickney,  88  Ind.  594.  "  Six  head  of 
hogs,"  James  v.  Fowler,  90  Ind.  563.  "  Ten  thousand  ninety  wool  pelts, 
the  wool  taken  therefrom  and  the  skins  thereof,  otherwise  known  as 
slots  In  pickle  or  lime,"  Marshal  v.  Friend,  33  Misc.  443,  68  N.  Y.  Sup. 
502.  "  Nine  fat  hogs,  mostly  black,"  Crum  v.  Elliston.  33  Mo.  Ap.  591. 
"  Thirty-seven  cases  of  Connecticut  leaf  tobacco,"  Lehman  v.  Mayer, 
68  Ap.  DIv.  12,  74  N.  Y.  Sup.  194. 


DESCRIPTION.    IDENTITY    OF    THE    GOODS.  157 

chairs,"   etc.,  ^  is  good.     80,  of  "  five  hundred  and  seventy-two 
three-year  old  Texas  cattle,  now  in  possession  of  the  party  des- 

*•  Beach  v.  Derby,  19  111.  619. 

Plaintiff  is  not  deprived  of  remedy  by  inability  to  remember  the 
particulars  of  many  separate  items,  or  the  particular  bills  and  pieces 
of  money  converted;  he  may  supplement  the  general  description  by 
a  description  of  the  place  where  the  goods  are,  or  by  such  circumstances 
as  will  put  the  defendant  on  notice  of  his  demands,  either  by  refer- 
ence to  the  substantial  characteristics  of  the  chattel,  or  the  circum- 
staijces  of  the  taking  or  conversion,  McElhannon  v.  Farmers  Alliance 
Co.,  supra.  Thus,  "  A  certain  number  of  bills  United  States  treasury 
notes  amounting  to,"  a  sum  named,  "  notes  or  bills  of  the  national  bank, 
currency  of  the  United  States;  "  "  Four  per  cent.  United  States  bonds, 
treasury  notes  commonly  called  greenbacks  and  national  bank  cur- 
ency  amounting  to "  a  sum  named,  in  several  counts,  each  averring 
that  the  denominations  of  the  bills  plaintiff  was  unable  to  give  be- 
cause in  possession  of  defendant,  was  held  sufiBcient.  Hoke  v.  Apple- 
gate,  92  Ind.  570.  So,  "  All  the  dry-goods,  notions,  carpets,  wall  paper, 
boots  and  shoes,  fixtures,  safe  and  personal  effects "  in  a  building 
described,  McCarthy  v.  Ockerman,  154  N.  Y.  565,  49  N.  E.  153.  "  A 
Canadian  dime  and  silver  quarter-dollar,  fifty-five  twenty  dollar  gold 
coins,  eight  twenty  dollar  bills,  all  contained  in  the  aforesaid  canvas 
belt,"  Eddings  v.  Boner.  1  Ind.  Ter.  173,  38  S.  W.  1110.  "  A  quantity 
of  hosiery,  underwear,  dry-goods,  and  notions  of  the  value  of  four 
thousand  seven  hundred  dollars,  shipped  by  Brown,  Durrell  &  Company, 
now  in  the  store  occupied  by  defendants."  giving  the  street  number, 
Durrell  v.  Richardson,  119  Mich.  592.  78  N.  W.  650.  "  Five  promissory 
notes  executed  by  J.  M..  .John  M.  and  P.  M.,  on  the  27th  day  of  De- 
cember, 1888,  each  bearing  interest  at  four  per  cent,  annually  and  due  in 
five,  seven,  eight  and  nine  years-  after  date,"  averring  inability  to 
describe  them  more  particularly,  because  "  in  possession  of  defendant 
ever  since  plaintiff's  appointment  as  administrator  of  deceased  payee," 
McAfee  v.  Montgomery.  21   Ind.  Ap.  196,  51  N.  E.  957. 

A  description  of  horses  by  name,  age,  color  and  value;  a  wagon  by 
the  name  of  the  maker,  McNorrell  v.  Daniel,  48  S.  E.  680.  "  All  farm- 
ing utensils  stored"  in  premises  named;  of  "cotton  seed,"  by  refer- 
ence to  the  house  where  it  is  stored,  Id.  Misnomer  of  the  variety  of 
wheat  Is  immaterial  where  the  premises  upon  which  it  is  grown  are 
set  forth,  Wlattles  v.  Dubois,  34  N.  W.  672.  In  Burr  v.  Brantley.  40  S. 
C.  538,  19  S.  E.  199,  an  averment  that  goods  were  taken  from  the 
posseHsion  of  plaintifT  and  retained  in  possession  of  defondants,  was 
held  to  cure  an  indefiniteness  in  the  description.  An  aflldavit  describ- 
ing the  goods  as  "  five  hundred  barrels  of  prime  mess  pork  which  is 
wronKfiilly  dftaincd  from  deponent."  by  the  said  defendant,  is  held 
sufficient.  Burton  v.  Curyea.  40  Ills.  320. 

A  receiver  In  Insolvency  brought  replevin  to  recover  a  quantity 
of  goodH  fraudulently   transferred    by   the   iiiHolvent   to   the  defend.uif. 


158  THIC    LAW     OF    REPLEVIN. 


ignatt'd,  ill   Morris  Co,  Kansas";-'  or,  "  all  the  stock,  tools,  and 
i-liattfls   lii'loiij;iiig  to  the  niortgageor,  in  and  about  the  wheel- 


IJrown   r.  Holmes.  13  Kau.  492. 


The  complaint  alleged  that  the  Insolvent  was  "  in  possession  of  a 
large  stock  of  groceries,"  and  that  prior  to  filing  her  petition  in  in- 
solvency she  "  removed  and  secreted  a  large  portion  of  said  stock  of 
the  vale  of  about  five  hundred  dollars  .  .  .  for  the  purpose  of  defraud- 
ing her  creditors,"  and  that  defendant  "  for  the  purpose  of  assisting 
her  in  defrauding  her  creditors  received  said  stock  of  groceries  into 
his  store  building;  "  there  was  no  other  description  of  the  property 
sought  to  be  recovered.  It  was  held,  nevertheless,  that  the  description 
was  sufficient.  Seligman  v.  Armando,  94  Calif.  314,  29  Pac.  710.  But 
in  a  later  case  in  the  same  court,  a  complaint  which  averred  that  an 
Insolvent  was  the  owner  and  in  possession  of  "  a  stock  of  merchandise, 
principally  hardware  at,  etc.,  and  then  and  there  transferred  to  de- 
fendant "  the  greater  part  of  said  merchandise,  to  wit,  paints,  oils, 
brushes  and  glass,  six  hundred  twenty-five  dollars;  pumps,  ])ipe  and 
l)Iow  implements,  three  hundred  twenty-two  dollars;  tools,  shelf  ware, 
buck-saws,  etc.,  one  hundred  five  dollars;  and  sundries  $ ,"  with- 
out any  mention  of  quantity,  quality,  values  or  price,  for  any  particular 
kind  of  property;  was  held  insufficient,  Hawley  v.  Kocher,  123  Calif.  77, 
55  Pac.  G96. 

The  following  were  held  Insufficient:  "  IG — 0,  octagon  solid  copper 
lining,  full  glass,"  Springfield  Co.  v.  Wielar,  26  Misc.  863,  56  N.  Y. 
Sup.  394.  "  One  lot  of  staves  and  saw  logs,"  Johnson  v.  McLeod,  80 
Ala.  433.  2  So.  145.  "Six  thousand  pounds  of  seed  cotton,  three  thou- 
sand i)undles  of  fodder,  and  fifteen  bushels  of  corn,"  Lockhart  v.  Little, 
30  S.  C.  326.  9  S.  E.  511.  "  Two  stallion  horses,"  even  in  the  judgment, 
Cooke  V.  Aquirre,  86  Calif.  479,  25  Pac.  5.  "Thirty-five  hundred  dollars 
lawful  money  of  the  United  States,"  McElhannon  v.  Farmers  Alliance 
Co.,  95  Ga.  670,  22  S.  E.  686.  "Corn  of  about  the  value  of  one  hun- 
dred dollars,"  Edwards  v.  Eveler,  84  Mo.  Ap.  405.  Judgment  for  "  forty- 
nine  head  of  hogs,  the  same  described  in  the  complaint  herein,  or 
five  hundred  eighty-five  in  case  delivery  cannot  be  had;  "  the  complaint 
described  "sixty-eight  head  of  hogs  on  the  macadamized  road  in  said 
county  on  place  formerly  kept  by  "W.  S."  Held  the  judgment  was  bad 
for  uncertainty,  there  being  nothing  by  which  the  sheriff  could  de- 
termine which  forty-nine  hogs  out  of  the  sixty-eight  were  to  be  Qb- 
livered,  Gullle  v.  Wing  Fook,  13  Ore.  577,  11  Pac.  277.  Complaint 
averred  that  defendants  were  in  possession  of  the  personal  goods 
of  the  plaintiff,  to  wit,  "  two  hundred  seventy  dollars  in  lawful  money 
of  the  United  States,  thirty  dollars  in  lawful  currency  of  the  United 
States,  being  two  ten  dollar  bills  and  five  dollar  bills;  "  that  two 
hundred  seventy  dollars  of  the  same  was  in  bank  to  the  credit  of 
Tharp  and  was  checked  out  on  a  day  named  to  defendant  Livingston 
and  deposited  with  him  as  bail  on  a  warrant  against  Tharp;  that  the 
entire  three  hundred  dollars  was  delivered  to  Livingston  as  constable 


DESCRIPTION.    IDENTITY    OF    THE    GOODS.  159 

Tvright  shop  now  occupied  by  him."  -  A  description  whicli  is 
sufficient  to  pass  property  is  usually  sufficient  in  replevin.'-^ 

-Harding  v.  Coburn,  12  Met.  333;  Morse  v.  Pike,  15  N.  H.  529;  Bur- 
dett  V.  Hunt,  25  Me.  419;  Wolfe  r.  Dorr,  24  Me.  104;  Winslow  v.  Merch. 
Ins.  Co.,  4  Met.  306. 

'-^  City  of  Fort  Dodge  v.  Moore,  37  Iowa,  388. 

for  making  the  arrest  on  the  warrant  above-mentioned,  and  turned 
over  to  Enson,  "  who  holds  the  same  for  said  Livingston."  Held,  that 
the  description  of  the  moneys  was  too  indefinite,  and  that  inasmuch 
as  all  the  money  was  obtained  by  check  it  did  not  appear,  and  was  not 
to  be  inferred,  that  the  money  so  obtained  was  the  identical  money 
deposited.  McLennan  v.  Livingston,  108  Ga.  342,  33  S.  E.  974. 

A  house  was  described  by  the  officer  in  his  levy  as  situate  on  lot 
eight,  when  in  fact  it  was  situated  on  another  lot.  Held  in  replevin 
that  the  fact  and  truth  of  the  matter  and  the  identity  of  the  house 
demanded  with  that  sold  upon  the  execution,  might  be  shown  by  parol, 
Elliott  V.  Hart,  45  Mich.  234,  7  N.  W.  812. 

After  judgment  all  intendments  are  in  favor  of  the  successful  party; 
thus  where  the  plaintiff  claimed  as  mortgagee  of  certain  live  stock, 
and  described  the  property  as  "  Nineteen  head  of  steers  from  twelve 
to  eighteen  months  old  of  different  colors  branded  4  on  the  right 
side;"  the  mortgage  attached  to  the  petition  described  "fifty-four 
calves  all  branded  4  on  the  right  side;  "  the  date  of  the  institution 
of  the  suit  did  not  appear;  the  court  held  the  description  of  the 
mortgage  applicable  to  the  animals  claimed  in  the  petition,  Merrill  v. 
The  Equitable  Company,  49  Neb.  198,  68  N.  W.  365. 

Uncertainty  of  description  in  the  complaint  is  ground  of  a  motion 
to  make  more  definite  and  certain.  Smith  v.  McCoole,  5  Kans.  Ap.  713, 
40    Pac.    988. 

The  defendant  cannot  claim  to  have  been  misled  by  any  uncertainty 
in  the  description  if  by  his  answer  he  asserts  title,  Peterson  v.  Fowler, 
76  Mich.  258,  43  N.  W.  10.  If  the  answer  makes  no  question  as  to  the 
identity  of  the  goods,  all  imperfections  in  description  are  waived, 
Kocher  v.  Palmetier,  112  la.  84.  83  N.  W.  816;  Oliver  v.  Wooley,  68 
Mo.  Ap.  304.  If  defendant  hap  concealed  or  disposed  of  the  goods  so 
as  to  place  them  beyond  the  reach  of  the  sheriff  he  is  not  prejudiced 
by  indefiniteness  in  the  description,  Lehman  r.  Mayer,  68  Ap.  Div.  12, 
74  N.  Y.  Sup.  194.  One  giving  a  bond  and  retaining  the  goods  admits 
the  possesKion  of  goods  answering  the  description  of  the  goods  In  the 
writ.  Farmers  Alliance  Co.  v.  McElhannon,  98  Ga.  394.  25  S.  E.  558; 
and  cannot  object  to  indefiniteness  In  the  description,  Ruch  v.  Morris, 
28  Fa.  St.  245;  Clemmons  r.  Rrlnn,  36  Misc.  157.  72  N.  Y.  Sup.  1066; 
Forodic*'  V.  Rinehart.  11  Ore.  208.  8  Pac.  285.  A  variance  between  the 
dceKcrl|)tlon  In  the  bill  of  Bale  and  the  things  actually  delivered  Is 
controlled  by  th.-  delivery.  Whittle  i-.  Phelps.  ISl  Mass.  317.  63  N.  E. 
907. 


160  THE    LAW    OK    REPLEVIN. 

§  17:').  When  the  sufficiency  of  description  is  a  question 
for  the  jury.  WliL-re  tlu'  identity  of  tlio  property  or  tlu;  cor- 
reetness  of  the  deseriptioii  beeoiiies  ii  (piestion,  it  is  for  the  jury 
to  determine  from  tlie  evideiiee.  Suppose  the  description  ran, 
*'  A  black  horse,  now  in  the  stable  of  A."  This  would  dou])tless 
be  sufticient ;  l>ut  suppose  the  evidence  showed  there  were  two 
black  horses  in  that  stable.  It  would  then  be  a  proper  (juestion 
for  the  jury  to  determine  whether  or  not  the  plaintiff  was  entitled 
to  tlie  horse  delivered."  And  this  rule  would  apply  in  all  cases 
where  the  (piestion  is  as  to  whether  a  given  description  applied 
to  or  covered  the  property  in  dispute  ;  but  if  the  question  was 
as  to  the  suflficieney  of  a  given  description  to  pass  title  or  sus- 
tain the  action,  it  would  be  for  the  court,  and  not  the  jury,  to 
decide. 

§  17G.  Synonymous  descriptions,  Illustrations  of,  and 
when  allowable.  The  term  heifer  may  be  used  to  describe 
a  cow.  "1  know  of  no  authority,"  says  Gray,  J.,"  "for  con- 
sidering 'heifer'  to  be  a  mis-description  of  a  cow,  except  in 
penal  statutes."  ^*  Upon  the  authority  of  these  cases,  it  may  be 
proper  to  describe  a  hog  as  a  pig,  or  vice  rersa  ;  colt  may  perhaps 
he  used  for  horse.  But  the  safer  way  is  to  make  the  description 
aecin-ate,  and  in  the  terms  which  an;  in  common  use  where  the  suit 
is  brought,  or  in  the  trade  or  business  with  which  it  is  connected 

§  177.  The  rule  as  to  certainty  of  description.  This  ac- 
tion does  not  lie  for  money,  uidess  it  l)e  in  a  bag  or  package,  or  in 
some  way  distinguislied  from  all  other  money  ;  -'  but  it  lies  for 

"Vennum  v.  Thompson,  38  111.  144. 

=*  Poraeroy  v.  Trimper,  8  Allen,   (Mass.)   403. 

"H.  P.  C.  183;  Carruth  v.  Grassie,  11  Gray  211;  Freeman  v.  Car- 
penter, 10  Vt.  434.  A  man  brought  replevin  for  a  "  heifer,"  and  in  his 
v.Tit  of  second  deliverance  he  called  it  a  "  cow."  Fitzherbert  said 
the  writ  was  good.  It  was  a  heifer;  it  may  be  a  cow  now.  Y.  B.  26 
H.  8.  6.  27. 

"Holiday  v.  Hicks,  Cro.  Eliz.  661;  Draycot  v.  Piot,  Cro.  Eliz.  818; 
Rapalje  v.  Emory,  2  Dall.  51.  "  If  I  bail  twenty  pounds  to  one  to 
keep  for  my  use,  if  the  money  were  not  contained  in  a  bag,  coffer  or 
box,  detinue  doth  not  lie  "—Core's  Case,  Dyer,  22  b;  6  E.  4  11;  7  H. 
414;  Banks  v.  Whetstone,  Moore,  394 — but  trover  would  lie.  Hall 
r.  Dean.  Cro.  Eliz.  841.  As  to  bank  bills,  see  Dows  v.  Bignall,  Lalor's 
Suplmt.  408;  Warner  v.  Sauk  Co.  Bank,  20  Wis.  492;  Jackson  v.  Ander- 
son. 4  Taunt.  24;  Skidmore  v.  Taylor,  29  Cal.  619;  Ames  v.  Miss.  Boom 
Co.,  8  Minn.  472. 


DESCRIPTION,    IDENTITY    OF    THE    GOODS.  161 

money  or  jewels  in  a  bag,**  or  bonds  which  are  numbered  and  can 
be  identified.^  When  coin  belonging  to  several  different  owners 
was  in  a  safe,  and  the  sheriff,  with  a  writ  of  attachment,  separated 
eighteen  hundred  dollars  from  the  remainder,  and  put  it  in  a 
bag,  and  the  plaintiff  brought  suit  in  replevin  to  recover  the 
money  from  the  sheriff,  the  court  regarded  the  separation  as  suf- 
ficient to  enable  him  to  sustain  the  action.'" 

§  178.  The  same.  The  plaintiff'  alleged  that  he  was  induced 
by  fraud  to  buy  a  book,  and  to  pay  one  thousand  dollars,  by  a 
draft,  which  was  delivered  to  a  banker,  and  by  him  collected  and 
placed  to  the  credit  of  the  seller.  Plaintiff  sued  for  one  thousand 
dollars  gold.  On  leave  given  to  amend,  lie  induced  the  defendant, 
the  banker,  to  put  nine  hundred  and  fifty  dollars  in  coin  in  a 
bag,  and  brought  replevin  for  it.  Held^  that  he  could  not  recover ; 
that  he  showed  no  title  to  the  specific  property  ;  that  the  banker 
could  not  make  it  the  money  of  his  depositor,  so  as  to  subject  it 
to  the  replevin  suit,  by  putting  it  in  a  bag,  without  the  depositor's 
consent." 

§  179.  Description  of  numerous  articles,  as  the  goods  in 
a  store.  Where  the  articles  are  numerous,  and  a  separate  de- 
iicription  of  each  would  not  aid  in  their  identity,  a  more  general 
method,  if  it  be  definite,  may  be  employed.  Thus :  "  A  certain 
storehouse,  warehouse,  and  the  goods  therein  contained,  being 
the  store  in  Council  Bluffs,  in  said  State  and  county,  known  and 
designated  as  the  store  of  your  petitioner,"  is  sufficient  for  the 
store  and  contents."  So,  when  a  chattel  mortgage  enumerates 
sundry  articles  specifically,  and  also  includes  "all  other  articles 
of  personal  property  in  and  about  the  mortgagor's  shop,"  the  gen- 
eral description  will  pass  all.'^ 


"Bull   N.    P.   32. 

*- Sapor  V.  Blain.  44  Hand.    (N.  Y.)    448. 

"Griffith  V.  BogarduB,  14  Cal.  410.  The  dhtinrfion  hptween  money 
and  HpecMfic  property  Is  stated  by  Lord  Ma.nsi  iki.h  in  Clarke  v.  Shee, 
1  Cowp.  R.  200. 

"  PllklnKton  V.  Trigg.  28  Mo.   98. 

"Ellsworth  r.  Henshall,  4  G.  Greene.  (la.(  41K.  To  invoice  a  Ktock 
would  he  tedloiiH.  exj)enHlve,  and  sometimes  Impossible;  and  the  courts 
have  held  that  when  the  store  Is  Identified,  the  "  contents  "  are  suf- 
ficiently ascertained  by  such  description.  Lltchmun  v.  Potter,  11«» 
Mass.    WIW. 

"HardlnK  v.  Cobiirn,  11^  .Met    .'!:!:{. 
11 


162  THK    LAW    OF    REPLEVIN. 

§  180.  Descriptions  which  may  refer  to  kind  or  quantity. 
It  iiKiy  111'  a  tiiU'.^tioM,  at  tinu's,  wlRdhci-  tliu  words  usi'il  ii»  the  writ 
are  iMuplovi'd  to  ilcsignate  the  kind  and  description  of  the  article, 
or  tiic  (luantiiy.  Thus,  "barrels  of  lime"  may  mean  lime  m 
harrel.s  or  it  may  refer  to  the  (jnantity  in  bnlk ;  "  barrels  of 
flour  "  may  be  a  jiroper  descrii>tion  of  flour  in  bags,  because  the 
coranion  usage  of  the  trade  in  many  parts  of  the  country  war- 
rants  it,  but  the  better  practice  is  to  avoid  any  description  which 
may  be  ambiguous.  Where  the  writ  directed  the  sheriff  to  take 
"barrels  of  IS'o.  1  mackerel,"  and  the  return  showed  that  lie  took 
barrels  and  half  barrels,  the  defendant  moved  for  a  return  of  the 
half  barrels,- upon  the  ground  that  they  were  not  described  in  the 
wiit ;  whereupon  plaintiff  proved  that  when  the  writ  was  being 
served,  the  defendant  agreed  that  two  half  barrels  should  be 
taken  for  a  whole  one,  and  the  court  held  that  "  the  term  '  barrel ' 
should  be  regarded  as  a  designation  of  quantity,  irrespective  of 
the  mode  in  which  it  was  packed,  or  the  particular  vessels  in 
which  it  was  contained."  •'* 

§  181.  A  quantity  described  as  "  about  "  so  much.  On  a 
writ  of  replevin  for  "about  four  hundred  tons  bog  ore,"  the 
sheriff  was  not  authorized  to  deliver  seven  hundred  and  twenty 
tons.  Such  a  WTit  was  held  defective,  and  that  the  sheriff  might 
have  refused  to  execute  it.  If  the  ore  had  been  identified  as  such 
a  lot  or  such  a  pile,  describing  it,  the  number  of  tons  might  have 
been  regarded  as  surplusage.'^ 

§  182.  The  proofas  to  description,  must  correspond  with 
the  writ.  The  proof  nmst  correspond  to  the  writ  and  declara- 
tion as  to  description  of  the  property  ;  any  material  variance 
will  defeat  the  action.  Where  the  suit  was  for  two  "  bay  horses,'' 
and  the  proof  showed  one  of  them  to  be  a  sorrel,  the  variance 
was  fatal.**  In  trover  for  "a  slave  named  John,"  the  proof 
showed  conversion  of  a  slave  but  not  that  his  name  w^as  John; 
held^  the  plaintiff  could  not  recover."  W^hen  a  note  was  de- 
scribed in  the  declaration  as  "a  note  for  |!l80,"and  the  proof  was 
a  note  for  $300 ;  held,  a  fatal  variance.*"  But  an  omission  of 
some  words  in  the  description  which  does  not  render  the  wi'it  so 

"Gardner  v.  Lane,  9  Allen,    (Mass.)    493. 
=  DeWlU  V.  Morris,  13  Wend.  495. 
"Taylor  v.  Riddle,  35  111.  567. 
"Ward   V.   Smith,  8   Ired.    (X.   C.)    296. 
"  Bissel  V.  Drake,  19  Johns.  66. 


DESCRIPTION.    IDENTITY    OF    THE    GOODS.  163 

defective  that  the  property  cannot  be  identified,  such  as  the 
omission  of  tlie  Avord  "  feet,"  in  describing  timber,  does  not  render 
the  writ  void.  The  sheriff  may  perliaps  refuse  to  serve  it  unless 
it  be  amended,  but  if  he  does,  by  taking  the  right  property,  the 
court  will  have  jurisdietion.'" 

§  183.  Exact  quantity  need  not  be  given  where  the 
particular  property  is  indicated.  It  is  not  essential  that  exact 
quantities  be  stated  when  the  description  is  otherwise  certain  ;  as 
for  example,  "a  pile  of  wheat," or  "a  quantity  of  barrels  of  pork," 
in  a  certain  warehouse,  would  be  good  without  mentioning  the 
number  of  bushels  or  barrels  ;  and  a  description  sufficient  to  pass 
title  will  be  good  in  this  action.*" 

§  184.  Writ  of  return  and  verdict  may  follow  declara- 
tion, as  to  description.  The  description  in  the  writ  of  return 
is  sufficient,  if  it  describe  the  property  the  same  as  the  declara- 
tion. If  there  is  a  misdescription  the  plaintiff  is  responsible  and 
must  suffer  the  consequences.*'  Where  property  was  specifically 
described  in  the  complaint,  and  in  the  verdict  was  referred  to  as 
"  said  property,"  it  was  sufficient.*^ 

§  iHo.  When  objections  to  the  insufficiency  of  descrip- 
tion must  be  taken.  When  the  defendant  desires  to  object  to 
the  description  for  uncertainty,  he  must  do  so  at  the  first  avail- 
able opportunity  ;  if  he  omit  to  do  so  and  plead  to  the  merits,  or 
give  bond  under  the  statute,  as  owner,  to  retain  the  property,  he 
will  be  considered  as  having  waived  such  defects."  So  a  declara- 
tion for  a  "  lot  of  sundries,"  is  bad  and  would  undeniably  have 
been  so  held  ;  but,  after  the  defendant  has  pleaded  that  they  are 
his,  and  has  gone  to  trial,  he  cannot  ask  the  court  to  reverse  the 
judgment  because  the  des(;rii)ti()n  is  uncertain.  If  he  had  really 
labored  under  this  want  of  knowledge,  he  had  the  means  to 
protect  himself,  before  pleading.**  The  reason  of  this  rule  is, 
that  the  oljjection  is  in  the  nature  of  a  dilatory  motion,  and  the 
rules  which  ajipiy  to  such  motions  must  gciu'ially  govern  here. 

§  18ft.     Replevin  does  not  lie  for  goods  sold,  unless  they 

•Nolty  V.  The  State.  17  Wis.  008. 

"Scudder   r.    Worster,   11    Cush.   573;    Groat  v.   Glle,   Gl    N.   Y.   431; 
Susquehanna  Hooni  Co.  v.  Finny,  58  Pa.  St.  200. 
"  LammerH  v.  MyciH,  59  III.  210. 
"Anderson  v.  Lane.  32  III.  103. 
"Iluch  V.  MorrlH.  28  Pa.  St.  245. 
"Warner  r.  AuKhenbaunh,  15  S.  &  K.   (Pa.)   9. 


154  THE    LAW    O?^    REPLEVIN. 

are  in  some  way  separated  from  others  or  identified.  One 
of  the  fiunihiir  rules  of  tlie  law  coiiceniiiig  sales,  is,  that  a  simple 
harg-.iiii  is  not  suttieient  to  transfer  title  to  chattels  unless  it  be 
accDinpanied  by  some  actual  or  symbolic  delivery,  or  by  some 
separation  of  the  chattels  sold,  to  distinguish  them  from  others.** 
Thus,  a  contract  to  sell  and  deliver  a  certain  number  and  kind  of 
liogs  belonj^ing  to  the  seller,  at  a  particular  time  and  place,  will 
not  vest  suttieient  title  in  the  purchaser  to  sustain  replevin,**  for 
the  reason  that  where  anything  remains  to  be  done  to  complete 
the  contract  of  sale,  the  title  does  not  pass.  The  contract  must 
l)e  completed  before  it  will  transfer  the  title.  Where  a  party 
agreed  to  deliver  hedge  plants  and  to  take  his  pay  in  land,  and 
learning  that  the  title  to  the  land  was  defective,  refused  to  de- 
liver, yet  notified  the  party  he  could  have  the  plants  on  paying 
for  them,  the  purchaser  took  no  such  title  as  would  sustain  re- 
plevin." But  where  one  bought  and  paid  for  a  quantity  of  corn 
out  of  the  seller's  lot,  and  the  vendor  afterwards  sold  the  Avhole, 
the  fact  that  the  corn  was  not  measured  or  set  apart,  will  not  de- 
feat an  action  for  money  had  and  received.*® 

§  187.  The  same.  If  the  owner  of  a  large  quantity  of  a 
particular  kind  of  merchandise  sells  part  of  it,  property  in  that 
part  does  not  pass  unless  it  be  in  some  way  set  apart  or  distin- 
guished from  the  rest.  Consequently,  the  purchaser  cannot 
maintain  replevin,  even  though  he  has  paid  full  value  for  it.*' 
Hut  if  the  property  is  so  indicated  by  description  that  it  may  be 
separated,  it  will  be  suflficient  to  pass  title  upon  which  to  base  the 
action."'  Where  the  action  was  for  the  price  of  bark,  sold  at  a 
stipulated  price  per  ton,  it  was  agreed  that  it  should  be  weighed 
by  two  jiersons,  each  party  to  name  one.  Part  of  the  bark  was 
weighed  and  delivered,  but  the  balance  was  injured  by  a  storm, 

"  Hutchins«n  v.  Hunter,  7  Barr.  (Pa.  St.)  140;  White  v.  Wilks,  b 
Taunt.  176;  Stevens  v.  Eno,  10  Barb.  95;  Stephens  v.  Santee,  49  N.  Y. 
35. 

*•  Lester  r.  East,  49  Ind.  588.  See  Suggetts,  Admr.  v.  Cason,  26  Mo. 
221. 

"Barrett  r.  Turner.  2  Neb.  174.  See  Sutro  v.  Hoile,  2  Neb.  186;  Bell 
V.  Farrar.  41  HI.  403;  Tyler  v.  Strang,  21  Barb.  198;  Di.xon  v.  Hancock, 
4   Cash.  96. 

"Long  V.  Spniill,  7  Jones,   (N.  C.)   96. 

♦•Crofoot  V.  Bennett,  2  N.  Y.  258;  Scudder  v.  Worster,  11  Cush.  573. 

"Ropes  V.  Lane,  9  Allen,  (Mass.)  510;  Groat  v.  Gile,  51  N.  Y. 
431. 


DESCRIPTION".    IDENTITY    OF    THE    GOODS.  165 

and  the  purchaser  refused  to  take  it.  The  court  held  that,  as  the 
bark  was  to  be  weighed  before  delivery,  the  property  remained 
with  the  seller,  and  the  loss  fell  on  him.** 

§  188.  The  same.  Defendant  agreed  to  make  three  wagons 
for  the  plaintitl" ;  but  as  the  contract  did  not  relate  to  any  par- 
ticular wagons,  it  would  not  sustain  replevin  by  the  purchaser." 
Neither  would  an  agreement  to  sell  entitle  the  purchaser  to  an 
action  for  possession  unless  the  particular  property  w^as  agreed 
upon  and  sold."  So,  of  a  contract  to  sell  two  hundred  tons  pig 
iron.  Vendors  were  daily  making  large  quantities.  It  was  piled 
up  as  they  saw  fit ;  not  marked,  nor  did  the  purchaser  ever  see  it. 
Held^  that  he  could  not  maintain  replevin  against  the  sheriff,  who 
levied  on  it  by  virtue  of  an  execution  against  the  vendor." 

§  189.  The  same.  A  party  bought  and  paid  for  two  thou- 
sand rolls  of  paper.  He  left  one  thousand  rolls  in  the  store,  not 
separated,  to  remain  until  he  should  call  for  it.  The  seller  soon 
after  made  an  assignment  for  the  benefit  of  his  creditors,  and  the 
purchaser  replevied  the  paper  from  the  assignee,  who  thereupon 
brought  trespass  against  the  plaintiff  in  replevin  and  the  sheriff. 
GiBsox,  C.  J.,  said :  ''  Had  the  pieces  been  separated  from  the  rest, 
a  small  excess  would  not  have  vitiated  the  sale  ;  but  there  is  no 
evidence  that  the  bargain  regarded  any  gross  lot,  or  any  particular 
pieces.  The  witness  testified  that  the  purchaser  was  to  have  his 
paper  out  of  the  seller,  but  that  he  had  not  selected  it,  nor  had 
any  particular  rolls  been  set  apart  for  him.  The  vendors  might 
have  delivered  him  any  otlier  paper  in  the  store."  Held,  that 
trespass  lay  by  the  assignee." 

§  100.  The  same.  Selection  by  the  purchaser;  when 
sufficient.  When  the  action  was  for  one  billiard  table,  the  de- 
fendants justified,  and  claimed  a  return.  It  appears  that  the  de- 
fendants sold  four  billiard  tables,  and  took  a  chattel  mortgage. 
At  the  fo<jt  of  the  bill  of  sale  was  an  agreement,  that  after  three 
hundred  dollars  should  be  paid,  they  would  give  a  receipt  in  full 
for  one  Uible,  and  so  continue,  as  payments  were  made,  until  all 

»'  SlmmondB  v.  Swift,  5  B.  &  C.  857. 

"Upklke  V.  Henry,  14  111.  378;  Halterllnc  v.  Rice.  (;2  B:irb.  593.  See. 
also,   r'ettenglll   v.  Merrill,  47  .Me.   109. 

"SuggC'tt'H  A«imr.  v.  CaHon,  2»;  Mo.  224. 

"FirKt  .Nat.  Hank  of  Maniuelto  v.  Crowly,  24  Mich,  4<ts.  See,  alao, 
Scott  V.   King,   12   Inrl.  20;{;   Cloud   v.  Moorman.  IS   Ind.  4(i. 

••  Colder  v.  Ogden.  15  Pa.  St.  528. 


166  THE    LAW    OF    REPLEVIN. 

were  paid  for.  Tliey  aftei-wiirds  ivci'ived  the  amount  and  exocnted 
a  R'CL'ipt  in  full  ftn-  one  table.  The  purchaser  afterwards  sold  all 
his  title  to  the  four  tahles.  The  subsequent  payments  not  being 
made,  the  defendants,  under  their  chattel  mortfjafije,  seized  all  four 
of  the  tables  and  sold  them.  The  a.ssignor  of  the  purchases  then 
demanded  one  of  the  tables,  and  afterwards  brought  this  suit 
The  court  lu-ld,  in  substance,  that  tlie  defendant  had,  under  the 
chattel  mortgage,  a  right  to  three  of  the  tables,  but  not  to  four. 
That  upon  the  execution  of  the  receipt  in  full  for  one  table, 
nothing  remained  but  to  select  or  designate  that  particular  table 
out  of  the  four.  Until  this  was  done  they  could  not  claim  any 
one ;  but,  as  they  took  the  four  tables  from  the  room  where  they 
were  stored,  they  obviously  nnist  liave  taken  them  one  at  a  time- 
In  leg-al  ellect,  they  made  their  selection  of  their  three,  when  they 
had  removed  three,  and  that  they  had  no  right  to  take  the  fourth. 
That  the  i)laintiff's  right  vested  absolutely  in  the  fourtli  table, 
when  the  defendants  had  exerci.sed  their  right  in  selecting  three, 
and  they  must  be  regarded  in  legal  effect  as  having  selected  the 
first  three  whicli  tlicy  took  ^ 

§  191.  The  same.  Where  the  defendants  agreed  to  sell  all 
the  rye  they  had,  to  be  delivered  at  a  certain  warehouse,  within 
ton  days,  and  to  take  a  note  at  three  niontlis,  the  vendor  delivered 
the  grain  at  the  warehouse,  where  it  was  stored,  sul)ject  to  his 
own  order.  The  note  was  not  tendered  within  the  time  agreed 
uj)on,  V)ut  a  day  or  two  thereafter  the  purchaser  sent  a  carrier 
with  an  order  for  the  grain.  The  vendor  refused  to  deliver  on  the 
order,  but  delivered  it  to  the  carrier,  to  be  carried  and  delivered 
on  his  own  account.  While  in  the  charge  of  the  carrier,  it  was 
replevied  by  the  purchaser  under  the  contract.  Held,  that  there 
was  no  delivery  of  the  grain  under  the  contract.  If  the  delivery 
to  the  carrier  had  been  for  the  use  of  the  purchaser,  it  would 
liave  been  different." 

§  192.  Property  acquired  by  verbal  gift,  without  delivery. 
Questions  concerning  the  title  ac(iuired  by  verbal  gift  of  personal 
property,  with  or  without  actual  delivery,  frequently  arise.  The 
general  rule  may  be  stated,  that  a  verbal  gift,  without  being  ac- 
companied by  delivery,  will  not  vest  the  donee  with  the  title. 
15ut  when  there  has  been  an  actual  manual  delivery,  or  where  the 

=•  Clark  V.  Griffith,  24  N.  Y.  596. 

"Lester  v.  McDowell,  18  Pa.  St.  94.  See,  also,  Bradley  v.  Michael,  1 
Carter,    (Ind.)    552. 


DESCRIPTION,    IDENTITY    OF    THE    GOODS.  167 

article  is  bulky  and  incapable  of  actual  manual  delivery,  a  con- 
structive delivery  will  pass  the  title  to  the  donee,  avIio  may  main- 
tain an  action  as  the  oAvner.^ 

§  193.  The  general  rule  applicable  in  these  cases.  A 
full  discusion  of  these  questions  is  more  particularly  appropriate 
to  work  on  contracts,  or  sales.  As  affecting  the  action  of  re- 
plevin, the  rule  gathered  from  the  cases  before  mentioned,  and 
sustained  by  the  authorities,  is,  that  a  sale  and  agreement  to  de- 
liver property,  without  any  actual  or  symbolic  delivery,  or  some 
separation  or  indication  of  the  property  sold,  to  distinguish  it 
from  other  similar  property,  "vvill  not  support  replevin  by  the  pur- 
chaser ;  ^  but  any  separation  or  distinguishing  of  the  goods  from 
others,  so  that  they  can  be  identified  as  the  particular  lot  sold 
will  be  sufficient  to  complete  an  otherwise  valid  sale,  so  as  to  pass 
the  title  and  enable  the  vendee  to  maintain  replevin.  When  bar- 
rels of  mackerel  were  inspected  and  marked  "  No.  1,"  "  No.  2," 
etc.,  a  sale  of  all  marked  Xo.  1  will  pass  the  title  to  such  as  are  so 
marked,  without  any  other  separation.*^ 

§  194.  Symbolic  delivery.  Delivery  of  a  bill  of  lading  by 
the  owner  of  the  goods  shipped,  with  the  intention  to  transfer 
title  to  them,  or  as  security  for  money  advanced,  is  a  symbolic 
delivery  of  the  goods  shipped  under  it,  and  vests  in  a  party 
advancing  money  thereon  a  right  to  recover  the  property  in  re- 
plevin.*' Such  a  transfer,  however,  is  not  absolute,  but  open  to 
explanation.*''  Unexplained,  it  amounts  to  a  pn'»i((  facie  transfer 
of  the  goods.  When,  however,  the  bill  of  lading  i.s  accompanied 
by  a  draft,  it  must  be  understood  to  mean  that  the  consignees 
t;ike  the  property  subject  to  the  payment  of  the  draft,"  and  the 
fact  that  the  consignor  was  indebted  to  them  on  overdrafts  would 
not  alter  the  case.  When  in  such  case  the  consignees  obtained 
possession  of  the  goods  without  ])ayment  of  the  draft,  the  con- 
signors could  sustain  trover  or  lepleviu  for  their  reeovery. 

"Consult  Hanson  r.  Millitt,  C.'j  Me.  184;  Reed  v.  Spaiilding,  42  N.  H. 
114;  Carswell  v.  Ware.  30  Geo.  2«7;  Kidder  r.  Kidder.  33  Pa.  St.  2«8; 
Hunter  v.  Hunter.  19  Barix  631;  Woodruff  v.  Coolt.  25  Barl).  505. 

"Barrett  v.  Turner.  2  Neb.  172;  Lester  v.  East,  49  Ind.  588;  Straus  v. 
Robs,  25  Ind.  300.  See  HodKl<lnR  v.  Dennott.  55  Me.  559;  Winslow  v. 
Leonard.  24  Pa.  St.  14. 

•"Ropr-H  V.  Lane,  9  All<'ii,   (.Mass.)   510. 

"Nat.  Hank  G.  Hay  v.  Dearliorn.  115  .Muhh.  219. 

"  Pratt   r.    Paritnian.   24    Pi<  k.   42. 

'■  FifHt  Nat.   Bank  v.  Crocker,   111    Mukh     MV.l 


168  THK    LAW    OF    RKPLEVIN. 

§  195.  Goods  distinguished  by  marks,  or  by  separation^ 
Sale  of  bales  (listinj^uislifd  by  inarks  and  iiuinhcrs,  Ibcn  lying  in 
vendor's  wareliouse,  to  loniain  rent  free,  at  buyer's  option,  was 
beld  to  be  a  sufficient  identification."  So,  wlierc  one  contracted, 
with  the  owner  of  timber  lands,  for  the  right  to  make  staves  at  a 
certixin  rate  per  thousand,  the  title  passed  as  soon  as  the  staves 
were  completed,  and  the  maker  was  allowed  to  bring  replevin  for 
those  which  the  owner  had  seized  before  they  were  counted  or 
paid  for.** 

**Hotchklss  V.  Hunt.  49  Me.  213.  See,  also.  Fifth  Nat.  Bank.  Chicago 
r.  Bayley,  115  Mass.  229;  Carter  v.  Willard,  19  Pick.  1;  Gibson  Vf 
Stephens.  8  How.  (U.  S.)  384;  Nat.  Bank  Cairo  v.  Crocker,  111  Mass. 
163.  Fettyplace  v.  Dutch.  13  Pick.  388.  is  an  interesting  case  of 
conflicting  liens  and  symbolic  delivery.  Morrison  v.  Dingley,  63  Me. 
553;  May  v.  Hoaglan.  9  Bush.    (Ky.)    171. 

•Mohn  V.  Stoner,  14  Iowa,  115. 


CONFUSION    OF    GOODS    OF    DIFFERENT    OWNERS.         1G9 


CHAPTER  VIII. 


CONFUSION  OF  GOODS  OF  DIFFERENT  OWNERS— CHANGE 

OF  FORM. 


Section. 
Mixture  or  confusion  of  goods 
belonging    to  different   own- 
ers     196 

Wilful    mixture  all  belongs  to 

the  innocent  part}'  .         .         .  197 
The  same.     Illustrations  of  the 

rule 198 

The  same.     Illustrations  of  the 

rule 199 

The  same 200 

The  same.     General  principles 

in  such  cases    .         .         .         .201 
Clianging  marks  to  produce  con- 
fusion        202 

Mixture  of    grain  ;  when  each 
owner  may  take  his  share       .  203 

The  same 204 

The  same 205 

The  same.  Rule  in  Illinois  .  206 
The  rule  in  New  York  .  207 
Where  an  officer  is  inducfd  by 
fraud  of  a  tliird  party  to  levy 
ou  goods  not  the  property 
of  the  defendant  in  the  pro- 
cess   20H 

General  statement  of  the  rule 

in  the  foregoing  cawes     .         .  209 
Change  of  fornj,  and  the  effect 
of  Huch  change    on  the  rights 
of  the  parti«.*H    .         .         ,         .210 


Rule  of  the  civil  law 

Goods  taken  by  mistake     . 

Change  of  form  does  not  change 
the  title  where  the  goods  can 
be  identified     .         .         .         . 

The  same 

Goods  taken  bj-  a  thief  or  tres- 
passer and  enhanced  by  his 
skill  or  labor    .         .         .         . 

Rule  where  the  goods  come  to 
the  hand  of  an  innocent  pur- 
chaser      .        .        .         .        . 

Owner  should  reclaim  his  prop- 
erty before  its  value  is  greatly 
enhanced  .        .        .         . 

Where  the  taking  is  wrongful 
tlie  taker  cannot  change  tlie 
title  by  any  change  in  the 
property  

Measures  of  damages  in  such 
cases         .        .         .         .         . 

Change  of  form  by  agreement 
does  not  affect  the  rights  of 
the  parties        .... 

Property  taken  and  annexed  to 
real  estate  or  other  tiling 
whicli  forms  the  principal 

Description  to  b<«  employed, 
where  tin-  projH*rty  ha3  under- 
gone a  change 


Section. 
.  211 


212 


213 
214 


MS 


216 


218 


219 


221 


^  lOr,.  Mixture  or  confusion  of  goods  belonging-  to  differ- 
ent owners.  I'  ti<-(|Uriitly  iKippcns  tlial  inopcit y  of  .similar 
kinds  V)elonging  to  (lifTcn;nt  owners  Ix'coinc  iiii.xcd,  l»y  iiccidcut  or 


170  Till-:    LAW    OF    REPLEVIN. 

design,  and  as  a  result  of  sucli  mixture  neither  owner  can  distin- 
guish what  portion  of  the  whole,  or  which  articles  comprised  in 
tlie  mass  belong  to  him. 

§  107.  Willful  mixture.  All  belongs  to  the  innocent 
party.  "  If  oiie  willfully  intermixes  his  money,  corn,  or  hay, 
with  that  of  another,  without  his  approbation  or  knowledge,  or 
easts  his  gold  in  like  manner  into  another's  melting  pot,  our  law, 
to  guard  against  fraud,  allows  no  remedy  in  such  case,  but  gives 
the  entire  property,  without  account,  to  him  whose  original  do- 
minion is  invaded,  and  endeavored  to  be  rendered  uncertain,  with- 
out Ids  consent.  But,  if  the  mixture  be  by  consent,  then  both 
have  a  common  interest  in  proportion  to  their  respective  shares." ' 

§  l^"*-  The  same.  •  Illustrations  of  the  rule.  Whereaper- 
.son  bought  a  stock  of  mortgaged  drugs  and  mixed  his  own  with 
them,  the  mortgagee  still  had  a  right  to  take  his  goods.  And  if 
in  so  doing  he  took  some  not  his  own,  they  being  so  confounded 
with  his  that  he  could  not  distinguish  them,  it  would  be  wrong 
to  charge  him  in  trespass.^  The  party  is  allowed  to  take  such 
articles  as  he  can  positively  identify,  under  the  idea,  that  as  to 
such  goods,  no  mixture  or  confusion  has  taken  place,  and  the 
party  has  lost  none  of  his  rights  to  them.' 

§  199.  The  same.  Illustrations  of  the  rule.  Where  an 
officer  having  attached  goods,  mixed  them  with  other  similar 
goods  previously  attached  by  another  officer,  he  loses  his  special 
jn-operty.*  And  where  a  mortgageor  carelessly  or  purposely 
mingles  his  unincumbered  goods  with  those  mortgaged  and  sells 
both,  the  mortgagee  may  replevy  the  whole ;  ^  and  it  is  for  the 
purchaser  to  furnish  evidence  to  distinguish  the  different  articles, 
and  on  Ins  failure  to  do  so,  the  whole  may  go  to  the  mortgagee, 

'2  Bla.  Com.  405.  See,  also,  Ward  v.  JEyre,  2  Bulst.  323;  Root  v. 
Bonnema.  22  Wis.  539;  Lupton  v.  White,  15  Ves.  432;  Hart  v.  Ten  Eyck, 
2  .John.  Ch.  R.  62.  See  Dodge  v.  Brown,  22  Mich.  451;  Low  v.  Martin, 
18  111.  286;  McDowell  v.  Bissell,  37  Pa.  St.  164;  Sims  v.  Glazener,  14 
Ala.   699. 

'Fuller  V.  Paige,  26  111.  359. 

'Dillingham  v.  Smith,  30  Me.  372;  Colwill  v.  Reeve,  2  Campb.  575; 
Smith  V.  Morrill,  56  Me.  566. 

•Gordon  v.  Jenney,  16  Mass.  469. 

^^  Adams  v.  Wildes,  107  Mass.  124.  Upon  this  subject,  consult  John- 
son V.  Neale,  6  Allen,  227;  Ropes  v.  Lane,  9  Allen,  502;  Rockwell  v. 
Saunders.  19  Barb.  473;  Siebert  v.  M'Henry,  6  Watts,  (Pa.)  301;  Hyde 
v.  Cookson.  21  Barb.  92;  Barron  v.  Cobleigh,  11  N.  H.  557. 


COXFUSIOX    OF    GOODS    OF    DIFFERENT    OWNERS.         171 

§  200.  The  same.  When  tools  belonging  to  different  work- 
men, A.  and  B.,  were  mixed,  so  that  it  was  difficult  to  distinguish 
them,  and  A.  sold  his  tools  to  C, without  specifjMng  them,  and  B. 
had  the  tools  removed,  and  in  so  doing,  some  of  A.'s  were  taken ; 
in  trespass  for  such  removal,  the  judgment  was  for  defendant.® 

§  201.  The  same.  General  principles  in  such  cases. 
The  principle  which  seems  to  govern  in  such  cases,  is,  that  the 
mixing  or  confusion  is  regarded  as  a  wrongful  attempt  to  deprive 
the  owner  of  the  means  of  identifying  his  goods.  To  guard 
against  this  wrong,  the  law  leaves  the  party  who  has  been  guilty, 
without  a  remedy,  and  gives  the  goods  without  account  to  hira 
whose  rights  have  been  invaded.  But  this  principle  is  not  carried 
to  the  extent  of  revenge  or  punishment,  except  in  cases  where 
the  trespass  was  willful.  The  law  will  not  suffer  the  principle 
to  be  carried  further  than  is  required  for  the  protection  of  an 
innocent  party  from  injury,  with  as  little  loss  to  the  other  as  is 
consistent  with  the  innocent  party's  rights.'     The  further  prin- 

*Rose  V.  Gallup,  33  Conn.  338. 

'  Holbrook  v.  Hyde.  1  Vt.  286.     See  Simmons  v.  .Jenkins,  76  111.  483. 

NoTK  XI.  Confusion  of  Goods. — If  one  having  charge  of  the  prop- 
erty of  another  so  confuses  it  with  his  own  that  it  cannot  be  distin- 
guished, he  must  bear  all  the  inconvenience  of  the  confusion,  Bracken- 
ridge  V.  Holland,  2  Blf.  377;  Williams  v.  Morrison,  32  Fed.  177;  Hentzv. 
The  Idaho,  3  Otto,  (93  U.  S.)  575,  23  L.  Ed.  978;  Simmons  v.  Jenkins, 
76  Ills.  479;   Bryant  v.  Ware,  30  Me.  295. 

Where,  at  the  time  of  the  levy  upon  goods,  the  party  having  title 
to  a  portion  thereof  indistinguishable  from  the  residue,  makes  no 
claim  to  these,  specially,  and  fails  to  inform  the  officer  of  his  right 
to  these  goods,  but  claims  the  whole  stock  under  a  sale  afterwards 
shown  to  be  fraudulent,  he  thereby  waixes  his  right  in  the  particular 
goods  and  will  not  be  heard  afterwards  to  assert  it,  Zielke  v.  Morgan, 
50  Wis.  560,  7  N.  W.  C51.  And  where  one  permitted  his  goods  to  be 
mingled  with  those  of  a  debtor  and  refused  on  request  to  point  out 
his  own  goods  to  an  officer  having  a  writ  of  attachnipnt  against  the 
goods  of  the  debtor,  it  was  held  the  officer  was  justified  in  seizing 
the  whole.  Smith  v.  Welch,   10  Wis.   91. 

The  question  whether  the  goods  are  dlstingulshablo,  is  for  (he  jury. 
Cadwell  v.  Pray,  41  Mich.  307,  2  N.  W.  52.  And  where  one  had  per- 
mitted his  goodH  to  be  confused  with  those  of  a  judgment  debtor  so 
that  It  was  ImpoBBlble  to  dlHtlngulsh  them.  It  was  held  he  could  not 
recover  damages  from  the  sherlfT  for  the  levy  (hereon,  the  sheriff 
having  done  no  act  to  embarrasK  hini  after  demaml  made.  WiMnuin  i'. 
Sterritt,  SO  Mich.  651,  45  N.  W.  657. 

But  the  forfeiture  of  one  man's  goods  by   roasoii  of  confusion   with 


172  THE    LAW    OF    REPLEVIN. 

ciple  is  to  be  gathered  from  the  cases  cited,  that  the  fact  of  mix- 
ture or  confusion  of  goods  does  not  change  the  rights  of  the  re- 
spective owners,  unless  it  produce  such  confusion  that  the  separate 
property  of  each  cannot  be  distinguished.  The  wrongful  turning 
of  horses  into  a  pasture  with  others  would  not  forfeit  the  horses, 
though  the  party  might  be  liable  for  the  trespass.  Neither  would 
the  mixture  of  any  other  goods  produce  a  change  in  the  title 
nor  make  the  parties  joint  owners,  unless  the  separation  of  the 
different  articles  became  impossible  or  impracticable. 

§  202.     Changing  marks  to  produce  confusion.     If  prop- 
erty is  marked  in  a  particular  way  by  the  owner,  and  another 

those  of  another  is  not  allowed,  where  it  can  be  consistently  avoided, 
Kewenaw  Association  v.  O'Neil.  120  Mich.  270,  79  N.  W.  183,  citing 
Mittenthal  v.  Heigel,  31  S.  W.  87.  The  wrongful  confusion  of  lumber 
manufactured  partly  from  logs  belonging  to  plaintiff  and  partly  from 
other  logs,  no  bad  faith  being  shown,  and  no  difference  in  the  kind, 
quality  or  value  of  the  lumber,  does  not  confer  title  to  the  whol» 
upon  the  plaintiff,  Id.  And  the  forfeiture  does  not  ensue  where  the 
intermixture  is  accidental  or  even  intentional,  if  not  wrongful; 
nor  where  the  identification  is  still  possible;  nor  where  all  are  of  the 
same  quality  and  value,  Hentz  v.  The  Idaho,  supra;  St  Paul  Co.  v. 
Kemp,  Wis.  103  N.  W.  259;  neither  owner  has,  in  such  case,  the  right 
to  take  all;  he  must  notify  the  other  to  make  a  division,  or  take  his 
own  proportion,  having  care  to  leave  to  the  other  owner  his  proper 
share,  Ryder  v.  Hathaway,  21  Pick.  298;  Queen  v.  Wernwag,  97  N.  C. 
383,  2  S.  E.  657.  Busch  cut  logs  from  the  lands  of  Nestor,  as  also 
from  his  own  lands;  they  were  all  marked  with  the  same  marks  and 
mingled  in  one  mass;  it  was  held  that  Nestor  was  entitled  to  select 
from  themass,  logs  to  the  number  cut  from  his  land,  of  like  kind,  and 
quality,  but  that,  as  the  confusion  was  not  malicious,  he  was  not  en- 
titled to  a  greater  number  than  his  own,  nor  to  keep  possession  of  the 
others  from  Busch  beyond  a  time  reasonably  sufficient  to  make  the 
separation,  Busch  v.  Fischer,  89  Mich.  192,  50  N.  W.  788;  see  Eldred  v. 
O'Conto  Co.-,  33  Wis.  133;  Young  v.  Miles,  20  Wis.  646;  Bent  v.  Hoxie, 
90  Wis.  625,  64  N.  W.  427;  Halpin  v.  Stone,  78  Wis.  183,  47  N.  W.  177; 
Hart  V.  Morton,  44  Ark.  447. 

A  mortgagor  of  chattels  cannot  by  confusing  them  with  other  like 
goods  defeat  the  mortgage,  so  as  to  retain  them  himself,  or  enable 
one  claiming  under  him,  to  retain  them.  Tootle  v.  Buckingham,  190 
Mo.  183,  88  S.  W.   619. 

Where  shingles  and  lumber  manufactured  from  trees  cut  by  a  tres- 
passer, partly  upon  lands  of  A.  and  partly  upon  lands  of  B.  are  con- 
fused by  the  trespasser,  either  A.  or  B.  may,  as  against  the  trespasser, 
or  one  claiming  under  him,  seize  the  whole  mass,  Bryant  v.  Ware,  30 
Me.  295. 


CONFUSION    OF    GOODS    ^F    DIFFERENT    OWNERS.         173 

without  his  consent  changes  the  mark,  or  marks  his  own  property 
in  a  similar  manner  for  the  purpose  of  creating  confusion,  the 
law  usually  gives  the  whole  to  the  innocent  owner  ;  and  althougli 
he  could  not  sustain  replevin  for  a  part  of  the  property  unless  he 
could  identify  it,  yet  he  may  in  many  cases  have  replevin  for  the 
whole.  Where  plaintiff  was  the  owner  of  certain  logs,  marked  in 
a  particular  manner,  and  the  defendant  caused  another  mark  to 
be  put  upon  them  so  that  they  would  he  marked  like  his  own, 
the  plaintiff'  was  permitted  to  sustain  replevin  for  the  entire  lot.* 

§  203.  Mixture  of  grain  ;  when  each  owner  may  take  his 
share.  When  the  mixture  occurs  without  wrong,  and  where 
from  the  very  nature  of  the  property  the  different  articles  are 
incapable  of  being  distinguished,  and  where  such  separation, 
could  it  be  made,  would  not  be  of  the  least  advantage  to  any  one, 
the  just  rule  and  the  current  authorities  is,  that  each  must  take 
his  share  from  the  common  mass.  Thus,  when  like  grain  of  dif- 
ferent o^^T^ers  is  mixed,  the  separation  is  not  only  impossible,  but 
the  failure  to  make  it  cannot  injuriously  affect  either  party  in 
the  slightest  degree.  And  in  all  such  cases  when  the  mixture 
has  been  by  consent,  or  under  circumstances  in  which  the  mixture 
would  be  reasonably  exi)ected  by  both,  or  when  it  has  been  occa- 
sioned by  accident,  or  mistake,  and  without  any  w^rong  intent, 
the  law  will  give  to  each  his  just  proportion,"  for  the  reason  that 
in  such  case  the  mixture  does  not  change  the  title,  nor  are  the 
consequences  such  as  follow  the  mixture  of  ingredients  incapable 
of  separation.'" 

§  204.  The  same.  \Vhen  plaintiff  delivered  barley  on  con- 
tract to  sell  for  cash,  and  it  was  put  in  a  warehouse  with  other 
barley,  but  was  not  paid  for  according  to  contract;  /iel>/,  in  nn 
action  for  conversi(jn,  that  tlie  plaintitf  had  a  right  to  the  amount 
of  his  grain  from  the  common  bulk." 

■  Wlngate  v.  Smith.  20  Me.  287;  Jenkins  t'.  Steanka,  19  Wis.  127; 
Willard  v.  Rice.  11  Met.  493;  Beach  v.  Shmultz.  20  111.  185;  Weil  v. 
SilvfTHtone.  G  Bush.  (Ky.)  G98;  Thome  v.  Colton.  27  Iowa,  427;  Gil- 
man  V.  Hill.  3fi  N.  H.  311;  Stephenson  v.  Little.  10  Mich.  433;  Seavy  v. 
Dearborn.  19  ,\.  H.  3.')1;   Ryder  v.  Hathaway.  21    Pick.  299. 

•Stephenson  v.  Little.  10  Mich.  433;  Buckley  v.  Buikley.  9  Nev.  379; 
Lupton  V.  White.  15  Ves.  432;  Forbes  v.  Shattuck.  22  Barb.  508;  Tripp. 
V.  Riley.  15  Barb.  334. 

"Story  on  BallmentK.  thin  title;  Wilson  r.  Nason.  1  Bosw.  (N.  Y.) 
155;   Ryder  v.  Hathaway.  21   FMck.  298. 

"Morgan  v.  Gre^'K.  4<;  Barb.  1S3;    Bristol  r.  Burt.  7  .lohn.  2nj. 


174  THE    LAW    OF    REPLEVIN. 

§  '20f).  The  same.  Tlic  law  is  well  settled  that,  where  prop- 
erty fiuiuot  Itc  ideiititied  or  si'i)arated  so  as  to  be  seized,  replevin 
is  not  tlie  prDpt'r  remedy.  But  in  eases  like  the  preeeding,  where 
the  goods  mixed  are  of  the  same  kind,  though  not  capable  of 
separation  by  identification,  yet  if  a  separation  and  delivery  can 
be  made  of  the  pro[)er  quantity  without  injuriously  affecting  the 
remainili'r,  eacli  may  claim  his  share  from  tlie  general  mass,  and 
may  employ  tliis  action  to  secui'c  it.'^ 

ij  -JOU.  The  same.  Rule  in  Illinois.  In  Illinois  the  rule 
seems  to  be  that  if  the  mixture  was  by  consent,  the  parties  be- 
came tenants  in  common,  and  neither  could  sustain  replevin.  If 
by  fraud  the  tenan(>y  in  common  does  not  arise,  and  the  innocent 
may  sustain  replevin  for  the  whole.  A  warehouseman  received 
a  quantity  of  corn  in  store,  and  mixed  it  with  other  corn  owned 
by  liimself  and  others,  with  the  consent  of  the  owner,  and  with 
the  understanding  that  a  like  quantity  and  quality  should  be  de- 
livered to  him  out  of  the  common  mass,  the  court  held  that  they 
were  tenants  in  common,  and  neither  could  maintain  replevin 
agjiinst  the  other.'*  But  if  the  mixture  had  been  made  by  the 
wrongful  act  of  the  warehouseman,  without  the  owner's  consent* 
it  would  have  been  otherwise.'* 

§  207.  The  rule  in  New  York.  In  New  York,  where  the 
wheat  of  A.  and  B.  was  mixed  in  a  bin  by  consent,  it  was  held  to 
create  a  tenancy  in  conmion.'^ 

§  208.  Where  an  officer  is  induced  by  fraud  of  a  third 
party  to  levy  on  goods  not  the  property  of  the  defendant 

'-■  Kaufmann  r.  Schilling,  58  Mo.  219;  Inglebright  v.  Hammond,  19 
Ohio,  337;  Ryder  v.  Hathway,  21  Pick.  305.  So  when  wood  of  two 
persons  became  mingled,  without  the  fault  of  either,  each  was  held 
entitled  to  his  share.  Moore  v.  Erie  R.  R.  Co.,  7  Lans.  (N.  Y.)  39. 
Where  a  warehouseman  gave  a  receipt  for  wheat  that  was  never  de- 
livered to  him,  the  holder  of  the  receipt  could  not  set  up  a  claim  to  a 
portion  of  the  wheat  as  against  owners  that  actually  put  in.  Jackson  v. 
Hale.  14  How.  (U.  S.)  525. 

"Low  V.  Martin,  18  HI.  286.     See  Parker  v.  Garrison,  61  111.  252. 

"Warner  v.  Cushman,  31  111.  283. 

"  Nowlen  i\  Colt,  6  Hill,  461.  When  the  property  of  several  owners 
is  in  its  nature  severable  (like  corn,  wheat,  etc.,)  without  injury  to 
the  mass  or  to  the  interest  of  the  other  owners,  one  may  appropriate 
his  share  if  it  can  be  determined,  without  the  consent  of  the  others. 
Forbes  v.  Shattuck,  22  Barb.  568;  Tripp  v.  Riley,  15  lb.  334;  Morgan  v. 
Gregg,  46  lb.  184.  So,  also,  in  Minnesota.  Ames  v.  Miss.  Boom  Co.,  8 
Minn.  473. 


CONFUSION    OF    GOODS    OF    DIFFERENT    OWNERS.         175 

in  the  process.  The  defendant  in  execution  was  the  owner  of 
a  piano  which  was  left  with  a  tliird  party,  who  caused  it  and  an- 
other one  resembli/ig  it  to  be  boxed  up  for  shipment.  Tlie  officer 
notified  the  bailee  that  he  held  an  execution,  and  desired  her  to 
point  out  the  piano  which  belonged  to  the  defendant  in  the  pro- 
cess. She,  however,  induced  him  to  levy  on  the  one  belonging  to 
herself,  for  which  she  afterwards  brought  replevin,  while  the  one 
which  she  knew  the  officer  intended  to  levy  on  was  shipped  away. 
The  court  held  that  under  such  circumstances  she  was  estopped 
from  asserting  title  to  the  piano  which  had  been  seized  by  her 
procurement.'* 

§  209.  General  statement  of  the  rule  in  the  foregoing 
cases.  Tt  does  not  appear  that  any  general  rule  can  be  deduced 
from  the  cases  above  cited.  A  different  practice  has  grown  up 
in  different  States.  The  rule,  as  stated  in  Michigan,  and  a  simi- 
lar rule  applies  in  Wisconsin  and  Missouri,  seems  to  commend 
it.self  not  only  as  being  fair,  but  as  certain  and  convenient  of  ap- 
plication. It  may  be  stated,  in  substance,  that  when  goods  of 
similar  description,  belonging  to  different  owners,  become  mixed, 
so  that  separation  becomes  impossible,  either  may  take  his  share 
or  proportion  from  the  common  mass,  and  may  if  he  choose,  resort 
to  replevin  for  the  pur{)ose  of  asserting  his  right.  When  logs  are 
mingled  in  the  river,  the  plaintiff  can  only  pursue  such  as  he  can 
identify  ;  but  if  not  able  to  distinguish  his  own,  there  being  no 
evidence  that  they  differed  in  value  or  description  from  other.s, 
with  which  they  were  mixed,  he  may  maintain  replevin  for  a 
quantity  out  of  the  common  mass  equal  to  the  quantity  owned  by 
him."  Where  tlie  defendant  cut  logs  on  the  land  of  another  by 
mistake,  and  mingled  them  with  his  own,  so  that  they  could  not 
be  distinguished,  the  i)laintifl"  might  have  replevied  the  amount 
belonging  to  him  from  the  mass.'"  Wliere  wlieat  was  stored  in  a 
warehouse,  and  by  con.sent  of  tiu;  owner  it  was  mixed  with  (hat 
of  the  warehouseman,  after  shipments  from  the  l)ulk,  until  an 
amoiHit  not  more  than  that  stored  by  the  plaint  ill'  rcmaiiUMl,  ]u> 
was  held  Hut  iibsolute  o\vn(*r ;  and  a  sale  by  the  wareliou.stiman  of 
such  remainder  wa.s  a  wrongful  conversion,  and  the  owner  would 

'•Colwell   r.   Hrriwrr,  7.'.   III.  rj22. 

"Kldred  v.  Thn  0<onto  Co..  :{3  WIh.  141.  Spo  also,  Kaufraann  v. 
Sf.hllllnK.  58  Mo.  218. 

"  Stearns  r.  Raymond,  20  Wis.  74.  Such  Is  also  the  law  In  Mln- 
ncHOta.     8(:hnIcnb«TK  v.   liarriitian,  21   Wall,  44. 


176  THE    LAW    OF    REPLEVIN. 

liiivo  the  ritx'it  to  follow  it  as  long  as  ho  could  identify  it."  In 
Missouri  it  was  said,  when  tlu*  goods  are  of  the  same  kind,  and 
not  capable  of  ideiitilication,  that  if  a  division  can  ])e  made  of 
equal  value,  as  in  the  ease  of  grain,  each  may  claim  iiis  propor- 
tionate part.-'" 

§  liio.  Change  of  form,  and  the  effect  of  such  change  on 
the  rights  of  the  parties.  It  frequently  happens  that  goods  in 
the  possession  of  a  defendant  liave  undei-gone  a  material  change 
while  in  his  hands.  Cloth  jnay  have  been  made  into  garments, 
leather  into  shoes,  logs  savvied  into  boards,  or  wheat  ground  into 
flour ;  or,  perhaps,  the  article  has  become  a  part  of  something 
else,  as  hoop-poles  may  have  been  placed  upon  barrels,  timber 
converted  into  a  house  or  ship,  skins  into  parchments,  on  which 
valuable  deeds  have  been  Avritten;  or  the  thing  may  have  under- 
gone a  chemical  change,  which  has  completely  destroyed  the 
original,  as  corn  manufactured  into  whisky,  grapes  into  wine, 
ajiples  into  cider  or  vinegar.  And  the  question  must  be  decided 
what  etl'ect  these  changes  have  had  on  ownership,  or  the  right  to 
recover  them  in  replevin. 

§  211.  Rule  of  the  civil  law.  Justinian  said,  "  If  a  man 
make  wine  with  my  grapes,  oil  of  my  olives,  or  garments  with  my 
wool,  knowing  they  are  not  his  own,  he  shall  be  compelled,  by 
action,  to  produce  the  wine,  oil  or  garments."  "  Pufendorff 
stiites  the  law:  "In  all  cases,  it  is  to  be  enquired  whether  the 
person  who  bestows  a  shape  on  another's  matter  doth  it  with  an 
honest  or  dishonest  design.  For  he  who  acts  thus  out  of  a 
knavish  jjrinciple  can  by  no  means  pretend  that  the  thing  belongs 
to  him,  rather  than  to  the  owner  of  the  matter,  though  all  the 
former  reasons  should  occur ;  that  is,  though  the  figure  should  be 
most  valuable,  thougli  the  matter  should  be,  as  it  were,  lost  or 
swallowed  up  in  the  work,  and  though  he  should  be  in  very  great 
want  of  what  he  has  thus  compacted.  For  the  greater  part  of 
the  two  doth  not  draw  it  itself  ;  the  less,  barely  b}''  its  own  virtue, 
or  on  its  own  account.  Hence,  if  a  man,  out  of  willful  and  de- 
signed fraud,  puts  a  new  shape  on  my  matter,  that  he  may  by 

"Young  V.  Miles,  23  Wis.  644;  Young  v.  Miles,  20  Wis.  615. 

"Kaufmann  v.  Schilling,  58  Mo.  218;  Inglebright  v.  Hammond,  19 
Ohio,  3.37;  Ryder  v.  Hathaway,  21  Pick.  305.  Compare  Kimberly  v. 
Patchin,  19  N.  Y.  330;  Scudder  v.  Worster,  11  Cush.  573;  Gardner  v. 
Dutch,  9  Mass.  427,  leading  cases  on  this  subject. 

"Justinian  Inst.;   Digest,  Liber,  10  Tit.  4  Leg.  12. 


CONFUSION    OF    GOODS    OF    DIFFERENT    OWNERS.         177 

this  means  rob  nie  of  it,  he  neither  g-.iins  any  right  over  the  mat- 
ter by  his  act,  nor  can  he  demand  of  nie  a  reward  for  his  labor, 
any  more  than  the  thief  who  digs  througli  my  walls  can  claim  to 
be  paid  for  his  trouble  in  making  a  new  door  to  my  house.  *  *  * 
All  this  doth  not  proceed  from  any  positive  constitutions,  but 
from  the  very  dictate  and  ai^pointment  of  natural  reason.  Though 
nature  doth  not  determine  any  particular  penalty  in  the  case."  " 

§  212.  Property  taken  by  mistake.  No  general  rule  can 
be  stated  which  will  be  applicable  in  all  these  cases;  each  must 
greatly  depend  on  its  own  peculiar  surroundings.  A  rule  which 
■would  be  just  and  convenient  in  one  case,  might,  in  another  very 
similar  case,  be  exceedingly  unjust.  Thus,  if  one  cut  trees  by 
mistake,  on  another's  land,  and  convert  them  into  logs,  the  owner 
of  the  trees  might  recover  the  logs,  and  the  person  who  had  cut 
them  would  lose  his  labor."  But  suppose  the  trees  are  made  into 
slabs,  and  the  slabs  into  costly  furniture,  then  the  rule  might  be 
extremely  unjust. 

§  213.  Change  of  form  does  not  change  the  title.  Where 
the  goods  can  be  identified,  owner  may  sustain  replevin. 
The  rule  may  l^e  stated  as  having  a  general  application,  that  it  is 
not  essential  the  property  should  remain  in  its  original  form,  in 
order  to  support  replevin,  provided  it  can  be  identified."  In 
other  words,  a  change  of  form,  when  the  property  can  be  identi- 
fied, is  not  a  bar  to  the  action  unless  the  change  has  been  wrought 
in  good  faith  by  an  innocent  party,  and  has  materially  increased 
the  value,  or  i-t  has  become  incorporated  with,  and  forms  part  of, 
another  thing,  which  is  the  principal.-' 

§  214,  The  same.  Two  cherry  trees,  growing  on  the  unen- 
closed wood-land  of  the  plaintiff,  were  cut  by  some  one  unknown  ; 
defendant  haul(;d  the  logs  to  mill,  where  they  were  sawed,  and 
took  the  boards  to  his  house.  The  court  sustained  replevin 
])rought  by  the  owner  of  the  land,  .saying  that  whatever  altera- 
tion of  form  property  may  assuujc,  the  owner  may  rex-laim  it,  if 
he  can  establish  the  identity  of  the  original  material.-"  In  Penn- 
sylvania,  the  court  held  replevin  would  not  lie  when  Uw  pioperty 
had  undergone  any  essential  change,  .so  that  its  ielentity  cannot  be 

"  Pufendorff  Law  of  Nature.  Book  4,  Cli.  7,  $  10. 
"Snyder  v.  Vaux,  2  Rawle.  427. 
"WInKate  v.  Smith.  20  Me.  287. 
"Gray  v.  F'arkrr,  38  Mo.  165. 
"DavlH  V.  EaHley.  13  111.  198. 
12 


178  THE    LAW    OF    REPLEVIN. 

ascertitined.  l>nt  siiiipU'rliiinge  of  fonn  will  not  defeat  the  plain- 
tiff's riplit.-' 

§  21;').  Goods  taken  by  a  thief  or  trespasser,  and  en- 
hanced in  value  by  his  skill  or  labor.  It  is  an  elementary 
priiu'ipU'  in  the  law  of  all  civilized  c(jninmnities  that  no  man  can 
be  deprived  of  his  property,  except  by  his  voluntary  act,  or  by 
operation  of  l;i\v.  The  thief  who  steals  a  chattel,  or  the  tres- 
passer who  takes  it  by  force,  acquires  no  title  by  such  taking. 
The  snbse(iuent  possession  by  the  thief  or  the  trespasser  is  a  con- 
tinuing wrong,  and  if,  during  its  continuance,  the  wrong-doer  en- 
hances the  value  of  the  chattel,  by  labor  and  skill  bestowed  upon 
it,  the  mannfactnred  article  still  belongs  to  the  owner  of  the 
original  material,  and  he  may  retake  it,  or  recover  its  increased 
value.  Even  if  the  wrong-doer  sell  the  chattel  to  a  purchaser 
having  no  notice  of  the  fraud,  he  obtains  no  title,  because  the 
trespas.ser  had  none  to  give. 

§  216.  Rule  where  the  goods  come  to  the  hand  of  an  in- 
nocent purchaser.  l>ut  if  a  chattel,  wrongfully  taken,  after- 
ward conies  into  the  hands  of  an  innocent  holder,  who,  believing 

"Snyder  v.  Vaux,  2  Rawle,  (Pa.)  427;  Curtis  v.  Groat,  6  Johns.  168; 
Babcock  v.  Gill,  10  Jolin.  287;  Brown  v.  Sax,  7  Cow.  95.  [The  owner 
of  logs  wrongfully  cut  may  replevy  the  shingles  which  have  been 
manufactured  therefrom,  though  worth  greatly  more  than  the  logs. 
Nelson  v.  Graff,  12  Fed.  389;  or  railway  ties,  McKinnis  v.  Little  Rock 
Co..  44  Ark.  210;  even  though  the  trespasser  acted  in  the  bona  fide 
belief  that  he  was  the  owner  of  the  land  from  which  he  cut  the  trees, 
and  the  ties  were  worth  greatly  more  than  the  logs,  Eaton  v.  Langley, 
65  Ark.  448,  47  S.  W.  123.  So  long  as  the  original  article  can  be  traced 
and  identified,  a  change  of  property  by  change  of  form  is  never  ad- 
mitted, unless  the  value  expended  upon  it  is  so  great,  as  compared  with 
the  original  value,  as  to  make  the  appropriation  of  it  in  its  changed 
form  by  the  original  owner  a  palpable  injustice.  Isle  Royal  Company 
V.  Hertin,  37  Mich.  332.  The  trespasser,  no  matter  how  innocent,  ac- 
quires no  property  in  the  logs  which  he  cuts  from  another's  land,  nor  a 
lien  thereon,  for  his  labor  and  expenses.  Gates  v.  Rifle  Boom  Co.,  70 
Mich.  309.  38  N.  W.  245.  One  who  has  been  defrauded  of  his  goods 
may  retake  them  in  whatever  changed  condition  he  may  find  them, 
Sommer  v.  Adler,  36  Ap.  Div.  107,  55  N.  Y.  Sup.  483; — as  wool  manu- 
factured into  garments,  Joslin  v.  Cowee,  60  Barb.  48.  But  one  whose 
money  has  been  stolen  cannot  maintain  replevin  for  the  goods  which 
the  thief  purchased  with  the  money,  Vogt  Co.  v.  Oettinger,  88  Hun, 
83,  34  N.  Y.  Sup.  729.  And  the  owner  of  goods  which  have  been  tor- 
tiously  taken  cannot  maintain  replevin  for  other  goods  for  which  they 
have  been  exchanged,  Power  v.  Telford,  CO  Miss.  195.] 


CONFUSION    OF    GOODS    OF    DIFFERENT    OWNERS.         179 

himself  to  he  the  owner,  converts  it  into  a  thing  of  different 
species,  so  that  its  identity  is  destroyed,  the  original  owner  can 
not  rechiim  it.  In  a  case  of  this  kind,  the  change  is  not  an  in- 
tentional wrong  to  the  original  owner.  It  is  therefore  regarded 
as  a  destruction  or  consnniption  of  the  original  material,  and  the 
true  owner  is  not  in  such  case  permitted  to  trace  its  identity  into 
a  manufactured  article,  for  the  purpose  of  appropriating  to  liis 
own  use  the  labor  and  skill  of  the  innocent  party  who  wrought 
the  change  ;  but  he  is  to  put  his  action  for  damages  as  for  a  thing 
converted,  and  he  may  recover  its  value  as  it  was  Avhen  its  con- 
version or  consumption  took  place.-^  It  will  be  seen  that  the 
question  is  not  whether  a  defendant  can  acquire  property  by  mix- 
ing it  with  other  property,  or  by  destroying  its  identity,  but 
whether  the  plaintiff  can  separate  his  property  after  such  ciiange.-'^ 
§  217.  Owner  should  reclaim  his  property  before  its 
value  is  greatly  enhanced.  Tlie  rule  in  Wi.sconsin  seems  to 
commend  itself,  as  well  for  its  plainness  as  for  the  manifest  jus- 
tice which  it  seems  to  deal  out  to  all  parties.  It  is  there  held 
that  the  owner  of  chattels  does  not  lo.se  his  property  by  mere 
change  of  form,  at  the  hands  of  another;  but  he  should  reclaim  it 
before  the  new  pos.sessor  has  greatly  increa.sed  its  value  by  the 
bestowal  of  his  skill  and  labor.  And,  in  event  of  his  failure  to 
do  so,  he  should  be  restricted  in  his  recovery  to  the  amount  of 
damages  he  has  actually  sustained,  unless  the  taking  was  accom- 
panied with  some  circumstances  of  malice  or  insult  that  might 
make  it  proper  to  inflict  exemplary  damages.  This  rule,  while  it 
protects  the  owner  fully,  will  be  easy  of  ai)plication,  and  do  jus- 

**  Hiscox  V.  Greenwood,  4  Esp.  174;  Wetherbee  v.  Green.  22  Mich. 
311;  Betts  v.  Lee,  5  Johns.  34S;  Curtis  v.  Groat.  6  .lohns.  1G8:  Chandler 
V.  Edson,  9  .lohns.  3G2;  Hyde  v.  Cookson,  21  Barb.  92;  Baker  v.  Wheeler. 
8  Wend.  .508;  Snyder  v.  Vaux.  2  Rawle,  427;  Riddle  v.  Driver,  12  Ala. 
590;  Ryder  v.  Hathaway,  21  Pick.  305;  Heard  v.  .lames,  49  Miss.  237: 
Martin  v.  Porter,  5  Mees.  &  W.  352;  Rlghtmyer  v.  Raymond,  12  Wend. 
51;  Baker  v.  Wheeler,  8  Wend.  505;  Wild  v.  Holt.  9  Mees.  &  W.  (572; 
Harris  v.  Newman,  5  How.  (Miss.)  (558;  Putnam  v.  CushlnR.  10  Gray. 
(Mass.)  334;  Mallory  v.  Willis,  4  Comst.  76.  See  LInch  t'.  Welsh,  3  Pa. 
St.  294.  (I.OKH  are  cut  by  a  wilful  tresjjasser,  and  converted  into  lum- 
ber; the  innocent  purchaser  from  lilm  is  liable  for  the  full  value  of 
the  lumber.  Bolles  Woodenware  Co.  t».  United  States.  IC  Otto..  (KM! 
U.  S.)  432.  27  L.  Kd.  230.  Even  an  innocent  i)urcbaHi'r  is  liable  for  the 
Increased  value.  Nesblt  v.  St.  Paul  Co..  21  Minn.  491.  citing  Silsbury  v. 
McCoon,  3  N.  Y.  379.  and  reJedinK  Single  v.  Schneider.  30  Wis.  G70.) 

"Ames  V.  Miss.  Boom  Co.,  8  Minn.  170. 


180  THE    LAW    OF    REPLEVIN. 

liro  t«)  Ixttli  piiiiics,  wlu'U  sucli  a  ii'sult  is  attainable.^'  In  Mich- 
ig-.in,  a  sonu'what  .similar  doctrine  prevails.  When  timber 
worth  twfiity-tivedollar.s  bad,  by  one  in  the  exercise  of  a  .snpposed 
right,  in  ^mod  faith,  ])efin  converted  into  hoops  worth  seven  hun- 
<lred  dollars,  it  was  held  tliat  the  title  passed  to  the  party  who 
had  in  good  faitli  exi)ended  his  labor,  and  the  owner  of  the  timber 
in  such  case  could  not  sustain  replevin  for  the  hoops."  In  Penn- 
sylvania, the  plaintiff  sought  to  recover,  in  trover,  the  value  of 
coal  dug  out  of  his  mine  by  mistake,  and  was  allowed  only  the 
value  of  the  coal  l)efore  it  was  mined.  The  court  says:  "  It  is 
ajiparent  that  any  other  rule  would  transfer  to  the  plaintiff  all 
the  defendant's  labor  in  mining  the  coal,  and  thus  give  her  much 
more  than  compensation  for  the  injury  done."  '■'■ 

§  *J1S.  Where  the  taking  was  wrongful,  the  taker  cannot 
change  the  title  by  any  change  in  the  property.  In  New 
York,  in  a  case  in  trover,  where  the  defendant  wrongfully  cut 
logs  on  the  plaintiff's  land  and  converted  them  into  lumber,  the 
<rourt  held,  that  the  property  w^as  not  changed,  and  laid  down 
the  rule,  that  in  cases  of  Avrongful  taking,  the  defendant  cannot 
by  any  act  of  his  change  the  title  to  the  property."  Probably  the 
strongest  case  in  the  books  will  be  found  in  New  York.  It  was 
where  corn  was  taken  by  a  willful  trespasser  and  converted  into 
whisky.  The  court  held,  that  the  change  of  form  had  not 
changed  the  ownership,  and  that  the  whisky  belonged  to  the 
owner  of  the  corn,  and  was  liable  to  be  seized  on  execution  for 
his  debts.^*     This  case  gains  importance  from  the  fact  that  it  had 

■"Weymouth  v.  C.  &  N.  W.  Ry.  Co.,  17  Wis.  550;  Single  v.  Schneider, 
30  Wis.  572;  Hungerford  v.  Redford,  29  Wis.  345.  Consult  Austin  v. 
Craven,  4  Taunt.  644. 

'■  Wetherbee  v.  Green,  22  Mich.  31L 

"=  F'orsyth  v.  Wells,  41  Pa.  St.  291.  Contra,  see  Robertson  v.  .Tones, 
71  111.  405.  If  a  man  take  my  garment  and  embroider  it  with  silk,  I 
may  take  back  the  garment;  but  if  I  take  the  silk  from  you  and  em- 
broider or  face  my  garment,  you  shall  not  take  my  garment  for  your 
silk,  which  is  in  it,  but  are  put  to  your  action  for  my  taking  the  silk 
from  you.     Anon  Popham,  38. 

•^  Brown  v.  Sax,  7  Cow.  95.  See,  also,  Hyde  v.  Cookson,  21  Barb.  92; 
Martin  r.  Porter,  5  Mees.  &  W.  352;  Betts  v.  Lee,  5  Johns.  348;  Right- 
myer  v.  Raymond,  12  Wend.  51;  Wild  v.  Holt.  9  Mees.  &  W.  672;  Curtis 
V.  Groat.  6  Johns.  168;  Babcock  v.  Gill.  10  John.  287;  Ricketts  v.  Dor- 
rel.  55  Ind.  470.  So,  when  wool  was  taken  and  made  into  coats.  Curtis 
V.  Groat,  6  Johns.  168. 

"Silsbury  v.  McCoon,  3  Comst.  380. 


CONFUSION    OF    GOODS    OF    DIFFERENT    OWNERS.         ISl 

twice  before  been  considered  in  the  supreme  court  and  a  contrary 
conclusion  reached.^* 

§  219.  Measure  of  damages  in  such  cases.  The  rule  as 
before  stated  does  not  appl)'  to  cases  of  willful  tjiking.  A  tres- 
passer cannot  change  the  property  by  changing  the  form,  so  long 
as  the  identity  of  the  article  can  be  shown.  If  the  labor  of  the 
defendant  has  added  to  the  value,  it  is  in  his  power  to  relinquish 
the  increased  value  or  to  keep  it  himself.  If  he  claims  the  prop- 
erty, it  is,  under  the  statutes  in  many  States,  in  his  power  to 
retain  it  by  giving  bond  to  the  sheriff ;  and  the  effect  of  a  verdict 
for  plaintiff,  for  value,  is  a  transfer  of  the  title  to  the  defendant. 
The  rule  of  damages,  if  the  trespass  was  by  mistake,  would  be 
the  value  before  the  defendant  had,  by  bestowal  of  his  own  labor, 
increased  it.  If  the  trespass  was  willful,  the  damages  would  be 
the  value  at  the  time  of  bringing  suit.^" 

=°Silsbury  v.  McCoon,  3  Comst.  380.  and  S.  C,  4  Denio,  332;  S.  C,  6 
Hill,  426.  See,  also.  Gray  v.  Parker,  38  Mo.  160.  See  the  able  and  ex- 
haustive argument  of  Mr.  Hill  in  note  to  3  Comst.  380. 

^Herdic  v.  Young,  55  Pa.  St.  178;  Young  v.  Herdic,  55  Pa.  St.  172; 
Snyder  v.  Vaux,  2  Rawle,  427;  Heard  v.  James,  49  Miss.  236;  Bull  v. 
Griswold,  19  111.  631.  [If  a  trespasser  cut  logs  the  property  remains  in 
the  owner  of  the  land,  no  matter  what  alteration  in  form  they  undergo, 
or  what  increase  in  value,  so  long  as  the  thing  is  susceptible  of  identi- 
fication, Street  v.  Nelson,  80  Ala.  230.  The  owner  recovers  the  thing 
in  its  changed  form  or  its  value,  if  the  wrong  be  wilful,  Bly  v.  United 
States,  4  Dill.  464.  Trees  tortiously  cut,  even  by  mistake,  and  con- 
verted into  cord  wood,  the  trespasser  is  not  entitled  to  any  allowance 
for  his  labor;  such  a  doctrine  is  to  offer  a  premium  for  recklessness  and 
carelessness  in  dealing  with  the  property  of  another.  Isle  Royal  Co. 
V.  Hertin,  31  Mich.  332.  Plaintiff  cut  trees  from  the  lands  of  defendant 
adjoining  his  own  lands  and  mixed  them  with  other  logs  of  his  own  in 
the  boom;  it  was  held  that  the  defendant  was  entitled  to  select  in  the 
boom,  from  the  logs  run  by  plaintiff,  a  number  of  average  quality, 
equal  to  those  cut  upon  his  land,  and  was  not  liable  to  defendant  for 
the  difference  between  the  value  of  the  trees  and  the  logs.  If  the  tres- 
passer has  acted  In  good  faith,  even  though  the  authority  under  which 
he  aHBumed  to  act  was  in  law  absolutely  void,  or  his  trespass  was  unin- 
tentional or  accidental,  the  value  of  the  property  is  estimated  as  of  the 
time  and  place  of  the  taking  and  in  its  then  condition,  with  Interest 
to  the  date  of  the  verdict.  State  v.  Shevlln  Co..  62  Minn.  93,  64  N.  W. 
81.  The  owner  of  the  land  recovers  the  value  at  the  time  of  the  Hrst 
severance,  Moody  v.  Whitney,  :'.8  Me.  174.  One  who  hi-Izch  a  raft,  the 
property  of  another,  which  has  drifted  ii|)on  hlH  premlKeH,  and  converts 
It  into  firewood,  will  not  be  allowed  conipenHallon  for  his  labor  In 
cbanglDg  Its  form,  EaHtnian   v.   MarriH.  4   I>a.   An.   193.     Purchaser,  lu 


1S2  THE    LAW    OF    REPLEVIN. 

§  220.  Change  of  form  by  agreement  does  not  affect  the 
rights  of  the  parties.  When-  u  \v\y  \va.s  iiiado  iipuii  gold  coin, 
which  for  coiiNt'iiu'iico  Ava.s  ooiivorted  into  large  bilLs,  and  the 
bill.'^  wtM-e  then  icplcvicd  liv  a  .stranger  to  the  execution,  held, 
that  the  .sulistitution  of  the  hills  by  agreement  would  not  defeat 
the  aetion." 

§  U*J1.  Property  taken  and  annexed  to  real  estate  or 
other  thing  which  forms  the  principal.  If  projterty  taken, 
lu'  anncxi'il  to  and  made  part  of  some  other  thing  which  forms 
the  principal,  the  owner  cannot,  as  a  rule,  sustain  replevin,  but 
nuist  resort  to  his  action  for  damages.  When  timber  has  been 
converted  into  boards  and  they  have  been  incorporated  with 
otliers  into  a  house,  the  chattel  is  regarded  as  a  part  of  the  build- 
ing, and  replevin  does  not  lie.^"  It  will  be  seen  that  these  rules 
are  for  the  most  part  arbitrary,  differing  widely  in  cases  which 
are  very  similar.  And  the  difficulty  of  deducing  any  rule  apph- 
cable  in  all  cases  is  apparent.  It  .should  in  each  case  be  consid- 
ered Avhether  the  taking  and  subsequent  change  of  form  was 
made  by  mistake,  while  in  the  exercise  of  a  supposed  right,  or  was 
in  willful  disregard  of  the  rights  of  the  owaier.  In  the  former 
case,  where  the  property  had  undergone  a  material  change,  largely 
increasing  its  value,  the  rights  of  the  party  who  had  in  good 
faith  bestowed  such  increase  of  A^alue  must  be  respected.  But 
when  the  taking  and  subsequent  change  was  in  willful  disregard 

fraud,  of  cloths,  manufactures  them  into  garments;  the  seller  replevy- 
ing them  from  an  officer  who  has  taken  them  under  an  execution 
against  the  fraudulent  purchaser,  will  recover  the  value  of  the  thing 
sold,  Sommer  v.  Adler,  36  Ap.  Div.  107,  55  N.  Y.  Sup.  483.  In  Eaton  v. 
Langley,  65  Ark.  448,  47  S.  W.  123,  the  rule  is  declared  to  be  that  where 
the  goods  of  another  have  been  taken  wrongfully,  but  without  evil  in- 
tention, the  wrongdoer  acting  in  the  belief  that  the  property  was  his 
own,  and  the  wrongdoer  has  changed  the  form  and  increased  the  value, 
his  rights  should  be  dependent,  not  upon  the  mere  increase  in  value 
but  upon  the  relative  value  of  the  thing  in  its  original  form,  and  his 
expenditures  upon  it,  and  that  the  owner  ought  to  be  allowed  the 
value  of  the  chattel  in  its  new  form,  less  the  value  of  the  labor  and 
material  expended  in  transforming  it,  provided  these  do  not  exceed  the 
increase  in  value,  otherwise  the  value  in  the  new  form,  less  the  in- 
crease.] 

"  St.  L.  A.  &  C.  R.  R.  V.  Castello,  28  Mo.  380.  For  a  case  of  trover 
for  the  produce  of  stolen  notes,  see  Golightly  v.  Reynolds,  Lolft.  88. 

^Snyder  v.  Vaux,  2  Rawle,  423;  Ricketts  v.  Dorrel,  55  Ind.  470;  Betts 
V.  Lee,  5  Johns.  348;  Brown  v.  Sax,  7  Cow.  95;  2  Bla.  Com.  404, 


CONFUSION    OF    GOODS    OF    DIFFERENT    OWNERS.         183 

of  the  rights  of  the  plaintitf,  it  is  eminently  proper  that  the  taker 
should  not  be  permitted  to  derive  any  protit  from  his  wrongful 
act,  and  that  the  owner  be  allowed  to  recover  his  goods,  even  if 
it  result  in  taking  with  them  some  of  the  fruits  of  the  wrong- 
doer's labor. 

§  222.  Description  to  be  employed  where  the  property 
has  underg-one  a  chang-e.  AVhen  the  suit  is  brought  for  prop- 
erty which  has  undergone  a  change  of  form,  the  writ  and  pro- 
ceeding should  describe  it  in  the  form  in  which  it  exists  at  the 
time  when  the  suit  is  begun.^"  And  the  ownership  of  the  orig- 
inal materials  and  proof  of  identity  may  be  given  in  evidence 
upon  the  trial. 

"Wingate  v.  Smith,  20  Me.  287. 


184 


THE    LAW    OF    REPLEVIN. 


CHAPTER  IX. 


CHATTEL  MORTGAGE. 


Section. 
Rights    of    a  mortgagee   in    a 

chattel  mortgage  .         .222  a 

The  mortgageor  lias  an  inter- 


Sectfon. 
est  which  may  be  seized  and 
sold  on  execution        .        ,  222  b 
Rights  of  mortgagee    against 
third  parties         .         .        .  223 


§  222  a.  Rights  of  a  mortgagee  in  a  chattel  mortgage. 
Upon  a  faihire  of  the  mortgageor  of  chattels  to  perform  the  con- 
ditions, the  legal  title  to  the  property  conveyed  in  a  chattel 
mortgage  of  the  usual  form  becomes  vested  absolutely  in  the 
mortgagee,'  and  he  may  recover  the  property  in  replevin.  Where 
there  are  several  notes  he  does  not  lose  his  lien  upon  the  non-pay- 
ment of  the  first  note  becoming  due,  but  may  wait  until  the  last 
note  matures,  and  then  take  the  property.- 

§  222  h.  The  mortgageor  has  an  interest  which  may  be 
seized  and  sold  on  execution.  Where  a  mortgageor  is  in  pos- 
session of  mortgaged  chattels  under  a  clause  in  the  mortgage 
which  gives  him  the  riglit  to  retain  possession  until  the  mortgage 
is  due,  he  has  an  interest  which  but  for  the  clause  giving  the 
mortgagee,  (in  case  he  feels  himself  insecure,)  a  right  to  take 
possession,  might  be  seized  and  sold  on  execution  against  him.^ 
When  such  goods  are  seized  and  the  debt  matures  before  the  sale, 
or  where  the  mortgage  contains  the  insecurity  clause  above  re- 

'  Brown  v.  Bement,  8  Johns.  96;  Saxton  v.  Williams,  15  Wis.  292; 
Ackley  v.  Finch,  7  Cow.  290;  Butler  v.  Miller,  1  Comst.  (N.  Y.)  496; 
Langdon  v.  Buel,  9  Wend.  80;  Livor  v.  Orser,  5  Duer.  501;  Patchin  v. 
Pierce.  12  Wend.  61;  Heyland  v.  Badger,  35  Cal.  411;  Brookover  v. 
Esterly,  12  Kan.  149. 

'Cleaves  v.  Herbert,  61  111.  127.     See  Reese  v.  Mitchell,  41  111.  365. 

'Saxton  V.  Williams,  15  Wis.  292;  Redman  v.  Hendricks,  1  Sandf. 
(N.  Y.)  32;  Prior  v.  White,  12  111.  261;  Schrader  v.  Wolflin,  21  Ind. 
238;  Mattison  v.  Baucus,  1  Comst.  (N.  Y.)  295;  Cotton  v.  Watkins,  6 
Wis.  629. 


CHATTEL     MORTGAGE.  185 

ferred  to,  the  mortgagee  may  demand  the  goods,  and  on  refusal 
may  sustain  replevin  fur  them.*  In  such  cases  the  possession  of 
the  mortgagee  can  only  be  asserted  in  compliance  with  the  terms 
of  the  mortgage.  The  distinction  between  a  chattel  mortgage  and 
a  pledge  is  clearly  stated  in  Jfe)/ktnd\.  B<uhjer^  o5  Cal.  409.  The 
mortgage  passes  the  property  to  the  mortgagee,  subject  to  be 
redeemed  according  to  the  terms  of  the  contract,  and  if  not  re- 
deemed the  propeity  becomes  absolute  in  the  mortgagee,  who 
may  sustain  replevin  for  the  goods,  or  trover  ft)r  their  value. 
The  mortgageor  could  not  maintain  trover  against  the  mortgagee 
for  refusing  to  deliver  the  goods,  or  for  selling  them,  for  the  title 
at  law  is  in  the  mortgagee  and  trover  depends  on  title,  general  or 
special,  to  support  it,  and  the  mortgageor  has  no  title — only  an 
equitable  right  to  redeem  the  property  by  payment  of  the  amount 
due  on  the  mortgage.'^ 

§  223.  Rights  of  mortgagee  against  third  parties. 
Where  a  chattel  mortgage  is  properly  executed  and  recorded,  so 
as  to  be  a  valid  transfer  of  the  property  in  the  county  where  the 
property  is  situated,  and  where  the  parties  and  property  are 
bound,  the  subsequent  removal  of  the  property  by  the  mortgageor. 
to  another  county  or  State  in  contravention  of  the  terms  of  the 
mortgage,  wnll  not  deprive  the  mortgagee  of  his  right  to  the 
property.  He  may  follow  it  and  assert  his  title  in  an  action  of 
replevin  against  the  mortgageor  so  removing  it,  and  the  author- 
ities are  tolerably  uniform  that  a  purchaser  of  such  property  in  a 
foreign  country  or  State,  without  notice  and  for  value,  cannot 
resist  the  claim  of  the  mortgagee.  The  mortgage  being  an  abso- 
lute transfer  of  the  property  to  the  mortgagee  with  a  statutory 
permission  to  the  mortgageor  to  retain  possession  for  a  limited 

'Simmons  v.  .Jenkins,  7G  111.  481;  Carty  v.  Fenstemalter,  14  Ohio  St. 
457;  Mclsaacs  v.  Hobbs,  8  Dana.  (Ky.)  2G8;  Putnam  v.  Gushing.  10 
Gray,  (Mass.)  334;  Bates  v.  Wilbur,  10  Wis.  415;  Randall  v.  Cook,  17 
Wend.  55;  Newman  v.  Tymeson,  13  Wis.  172;  Bailey  v.  Burton,  8  Wend. 
339;  EgRleston  v.  Mundy.  4  Gibbs,  (Mich.)  295;  Beach  v.  Dorby,  19 
III.  622;   Frisby  r.  Langworthy.  11  Wis.  379. 

'Consult  White  v.  Phelps.  12  N.  H.  385;  Burdick  v.  McVanner.  2 
Denio.  171;  Holmes  j'.  Bell.  3  Cush.  323:  Tannahiil  v.  Tuttle,  3  Mich. 
110,  citing  many  cases.  Wood  v.  Dudley,  8  Vt.  430;  Brown  v.  Bement, 
8  .Johns.  90;  Tabot  v.  De  Forest,  3  G.  Greene.  (Iowa.)  58r.;  Dewey  v. 
Bowman,  8  C'al.  150;  Ferguson  v.  Thomas,  26  Mo.  499.  See,  In  this  con- 
nection, Mobley  v.  I^tts,  61  Ind.  11;  Hunt  v.  Bullock,  23  ill.  325;  Titus 
V.  Mabee.  25  111.  257. 


186  Till-:    l.AW    OF    REPLEVIN. 

time,  the  bare  possession  does  not  confer  title.  Sale  by  the 
niortpifxi'fi'  under  such  eireunistances  is,  in  its  most  favorable 
lipht,  looked  upon  as  a  sale  by  a  bailee,  without  right,  and  such 
s;ile  caiuiot  attect  the  title  of  the  mortgagee." 


•Welch  V.  Sackett.  12  Wis.  243:  Smith  i'.  McLean,  24  Iowa,  322; 
Cotton  V.  Watkins.  6  Wis.  629;  Blystone  v.  Burgett,  10  Ind.  28;  Pick- 
ard  i\  Low,  15  Me.  48;  Offut  v.  Flagg,  10  N.  H.  46.  See,  also,  Martin  v. 
Hill.  12  Barb.  633;  Brackett  v.  Bullard.  12  Met.  309;  Pyan  v.  Clanton, 
3  Strob.  (S.  C.)  413;  Barker  v.  Stacy,  25  Miss.  471;  Jones  v.  Taylor, 
30  Vt.  42;  Loeschman  v.  Machin,  2  Stark.  311. 

NoTK  xn.  Xatiire  of  Mortgagee's  estate. — Mortgagee  in  possession 
has  the  legal  title.  Hunt  v.  Holton,  13  Pick.  216;  an  absolute  title 
after  default,  Klinkert  v.  Fulton  Company,  113  Wis.  493,  89  N.  W. 
507,  Simmons  v.  Jenkins,  7G  Ills.  479;— until  default  a  defeasible  title, 
Klinkert  v.  Fulton  Company,  supra. 

Mortgagee  in  possession  after  condition  broken  is  regarded  as 
the  owner.  No  leviable  interest  remains  in  the  mortgageor,  Ottumwa 
Bank  v.  Totten,  Mo.  89  S.  W.  65,  org.  In  the  Indian  Territory  the 
mortgageor  after  condition  broken  has  only  an  equity.  He  cannot 
evfn  upon  tender  of  the  debt  maintain  replevin  for  the  goods,  or 
confer  this  right  upon  another,  Schaffer  v.  Castle,  Ind.  T.  91  S.  W. 
35.  Mortgagee  of  chattels  has  the  legal  title;  but  until  default  and 
possession  assumed,  his  interest  as  against  the  mortgagee  is  special. 
The  mortgagee  may  sell  and  give  title  subject  to  the  mortgage,  and 
£U(h  title,  though  equitable,  is  good  as  against  the  world  except  the 
mortgagee.  In  case  of  conversion  the  mortgagee  recovers  the  value 
of  his  special  interest,  to  wit  the  amount  of  the  mortgage  debt.  Illi- 
nois Bank  r.  Stewart  Company,  Wis.  94  N.  W.  777.  The  mortgageor 
may  effectually  execute  a  second  mortgage,  Illinois  Bank  v.  Stewart 
Company.     Supra. 

Wliat  Incidents  pass  by  Mortgage. — A  mortgage  of  the  properties 
used  in  the  publication  of  a  newspaper  carries  the  good  will  of  the 
business;  but  in  the  absence  of  covenant  to  that  effect  the  mortgageor 
is  not  prohibited  from  the  publication  of  a  different  newspaper,  as 
the  agent  of  another,  using  for  the  circulation  thereof  the  sub- 
scription list  of  the  original  periodical,  Vinall  v.  Hendricks,  33  Ind. 
Ap.  413,  71  N.  E.  682. 

^Vhat  is  the  Subject  of  Mortgage.' — Mortgage  of  the  product  in  future 
years  of  particular  land  creates  a  valid  lien,  Payne  v.  McCormick  Co., 
11  Okl.  318,  66  Pac.  287,  citing  Grand  Forks  Bank  v.  Minneapolis, 
etc.,  Co.,  6  Dak.  357,  43  N.  W.  806;  Merchants  Bank  v.  Mann,  2  N.  D. 
456,  51  N.  W.  946;  and  the  mortgagee  may  have  replevin  for  the 
cr.'--p  when  harvested,  Id.  A  thing  to  be  subsequently  created  cannot 
be  effectually  mortgaged;  but  where  subsequent  to  such  an  attempted 
mortgage  the  article  is  actually  manufactured,  in  pursuance  of  the 
agreement  of  the  parties,  and  delivered  to  the  mortgagee,  the  effect 


CHATTEL     MORTGAGE.  187 

is  the  same  as  if  the  mortgage  were  executed  at  the  time  of  the 
delivery,  Falk  v.  Decou.  8  Kans.  Ap.  765,  61  Pac.  760.  Mortgage 
will  not  at  law  pass  chattels  in  which  the  mortgageor  has  no  present 
interest,  actual  or  potential,  Holliday  v.  Poston,  GO  S.  C.  103,  38  S  E. 
44D.  Mortgage  of  goods  to  be  afterwards  acquired,  not  the  product 
or  increase  of  something  already  owned  by  the  mortgageor,  is  no  more 
than  an  agreement  to  give  a  mortgage;  it  confers  no  lien.  Burns  i'. 
Campbell,  71  Ala.  271.  Mortgage  of  '•  all  the  lumber  purchased  by," 
the  mortgageor  from  the  mortjAagee,  where  no  lumber  at  all  had  been 
designated,  the  mortgage  is  without  effect  as  to  third  parties,  and  of 
doubtful  validity  as  between  the  parties  themselves,  Cass  v.  Gunnison, 
58  Mich.  108,  25  N.  W.  52.  But  in  Morten  v.  Williamson,  72  Ark.  390,  81 
S.  W.  235.  It  was  held  that  lumber  to  be  afterward  manufactured 
at  a  particular  mill  may  be  effectually  encumbered  by  mortgage.  The 
tenant  who  by  verbal  contract  with  the  landlord  is  entitled  to  one- 
half  of  the  crops  raised,  has  such  an  interest  as  may  be  effectually 
mortgaged  even  before  division,  Denison  r.  Sawyer,  Minn.  104  N.  W. 
305.  citing  McNeal  v.  Rider.  79  Minn.  153,  81  N.  W.  830,  79  Am.  St. 
437.  A  mortgage  of  pledged  goods  in  the  actual  possession  of  the 
pledgee  is  without  effect,  Ottumwa  Bank  v.  Totten,  Mo.  89  S.  W.  65. 
But  it  seems  that  such  a  mortgage  would  entitle  the  mortgagee  to  pos- 
session of  the  goods  on  payment  of  the  pledgee's  demand. 

Parties. — Partnership  may  take  security  by  chattel  mortgage  to  se- 
cure a  partnership  debt,  Kellogg  v.  Olson.  34  Minn.  103,  24  N.  W.  364. 
Mortgage  by  the  sole  legatees  of  a  decedent,  one  of  whom  is  the 
executor  of  the  will,  of  goods  pertaining  to  the  estate,  is  voidable  at 
the  instance  of  a  creditor,  but  valid  as  against  strangers,  Boeger  v. 
Langenberg,  42  Mo.  Ap.  7.  Mortgage  of  intestate's  goods  by  the  ad- 
ministratrix, is  not  assailable  by  a  stranger,  Springfield  Company  v. 
Shackelford,  56  Mo.  Ap.  642.  Semble.  the  president  and  secretary  of  a 
corporation  organized  in  another  state,  doing  business  in  Texas,  have 
power  to  execute  a  chattel  mortgage  of  its  properties,  McLeod  Co.  v. 
Craig,  Tex.   Civ.  Ap.   43   S.  W.   934. 

Irregular  Instruments. — A  lease  by  which  the  landlord  retains  title 
to  the  whole  crop,  agreeing  to  deliver  to  the  tenant  or  cropper,  a 
certain  proportion  on  conditions  specified,  is  not  a  chattel  mortgage; 
the  landlord  may  recover  the  whole  crop  from  one  to  whom  the 
tei.ant  has  assigned  his  Interest,  even  though  the  purchaser  took 
in  good  faith  and  without  notice,  Angell  v.  Egger,  6  N.  D.  391,  71  N.  W. 
547.  Verbal  agreement  that  certain  chattels  shall  "  stand  good  "  for 
a  particular  debt,  doeij  not  confer  a  legal  title  nor  will  it  susiain 
dtlinue,  Ja<k8on  v.  Rutherford,  73  Ala.  156.  A  writing  by  which  A. 
tranHfens  to  B.  certain  personal  property  in  consideration  of  acts  to 
be  done  by  B,  and  "  reserves  a  lien  "  upon  the  goods  until  the  acta 
stipulated  by  B.  are  performed,  does  not  secure  a  legal  title  In  A.,  does 
not  amount  to  a  mortgage,  and  will  not  sustain  detinue  by  A.  against 
B.,  Jones  v.  AnditrKori.  76  Ala.  427.  A  writing,  jissunilng  to  transfer 
"the  entire  crop   raised   the   present  year"   on   particular   lands,   «on- 


188  THE    LAW    OF    REPLEVIN. 

ditioned  to  be  void  if  the  maker  discharges  a  specified  debt  at  its 
miiturity,  and  authorizing  the  creditor  to  sell  the  goods  in  case  of 
default,  is  a  mortgage,  though  there  be  added  or  endorsed  upon  it.  of 
the  same  date,  a  writing  conferring  a  lien  upon  the  crop,  Gafford  v. 
Siearns,  51  Ala.  434.  A  writing  contained  a  promissory  note,  a  pledge 
of  a  piano  as  security  for  the  note,  and  a  power  of  sale,  held  not 
a  mortgage,  and  does  not  acquire  such  effect  by  registration,  Harding 
V.  Eldredge,  186  Mass,  39,  71  N.  E.  115.  The  same  writing  may 
operate  both  as  a  mortgage  and  as  a  statutory  lien,  Gafford  t'.  Stearns, 
51  Ala.  434.  To  create  an  agricultural  lien  under  the  statute  requires 
a  strict  compliance  with  the  provisions  of  the  statute,  Patapsco  Co  v. 
Magee,  86  N.  C.  350; — such  an  instrument  failing  as  a  lien  and  not 
assuming  to  convey  the  goods  will  not  operate  as  a  mortgage,  Id.  Any 
language  which  indicates  that  specific  personal  property  is  hypothe- 
cated for  performance  of  an  act,  is  sufficient  as  a  mortgage,  e.  g., 
"  the  articles  so  purchased  shall  be  held  ...  as  a  pledge  and  lien 
for  the  performance  of  the  agreements  herein,"  Esshom  v.  Watertown 
Co.,  7  S.  D.  74.  63  N.  W.  229.  A  bill  of  sale  absolute  is  a  mort- 
gage if  so  agreed  at  the  time  of  its  execution,  Clark  v.  Williams,  Mass. 
/6  N.  E.  723.  Or  if  intended  as  security,  Farrel  v.  Danbury,  104  N.  W. 
383.  A  contract  by  which  A.  sells  to  B.  the  timber  standing  on 
certain  lands,  B.  to  pay,  at  a  rate  specified,  in  each  month,  for  the 
logs  sawed  in  the  previous  month,  and  in  default  this  contract  "  to 
cease;  all  lumber  in  possession  of  B.  to  stand  subject  to  amount 
owed,"  gives  A.  a  mere  lien,  and  one  who  purchases  the  lumber  in 
possession  of  B,  without  notice  of  the  contract,  has  the  better  right, 
Thornton  v.  Dwight  Company,  137  Ala.  211,  34  So.  187.  A  junior 
mortgagee  may  protect  himself  by  discharging  the  senior  mortgage, 
Hlinois  Bank  v.  Stewart  Company,  Wis.  94  N.  W.  777.  And  he  is  en- 
titled to  demand  an  assignment  of  the  first  mortgage  upon  payment 
of  the  amount  due  thereon.  His  rights  are  not  affected  by  a  secret 
agreement  between  the  senior  mortgagee  and  the  mortgageor;  nor  by 
the  fact  that  the  mortgage  was  given  as  an  accomodation,  Williams  v. 
Hanmer.  132  Mich.  635,  94  N.  W.  176.  The  junior  mortgagee  does  not 
obtain  priority  over  the  senior  mortgagee  by  reason  of  any  state- 
ments or  promises  made  by  the  mortgageor  at  the  time  of  obtaining 
the  second  loan;  or  by  reason  of  the  fact  that  a  portion  of  the 
moneys  obtained  by  the  second  loan  was  paid  to  the  senior  mortgagee. 
Citizens  Bank  v.  Smith,  125  Iowa  505,  101  N.  W.  172.  Under  a  statute 
allowing  the  mortgageor  "  or  his  assignee  "  to  redeem  from  a  sale  of  the 
mortgaged  chattels  within  a  certain  time,  a  second  mortgagee  may 
make  redemption.  He  is  an  assignee  within  the  meaning  of  the 
statute,  Brown  v.  Smith,  N.  D.  102  N.  W.  171.  A  statute  allowing 
the  mortgageor  or  his  assignee  to  redeem  from  a  sale  of  the  mortgaged 
chattels  and  requiring,  in  order  to  such  redemption,  that  notice  shall 
be  given  of  the  desire  to  redeem  "  at  the  time  of  the  sale "  is  not 
to  be  taken  literally;  the  words  "at  the  time  of  the  sale"  must 
be    interpreted    to   mean    within    a    reasonable    time,    and    to    require 


CHATTEL     MORTGAGE.  189 

prompt  and  vigorous  action.  A  notice  served  within  thirty-three 
minutes  after  the  completion  of  the  sale  is  in  time,  Brown  v.  Smith, 
N.   D.   102   N.   W.   171. 

Mortgage  for  Purchase  Money. — Mortgage  for  purchase  money  of  the 
goods,  duly  acknowledged  and  recorded,  on  the  day  following  its  exe- 
cution, takes  precedence  of  an  execution  already  in  the  hands  of  the 
officer,  Brewster  v.  Schoenhofen  Co.,  66  Ills.  Ap.  276.  A  mortgage  for 
purchase  money,  though  not  properly  acknowledged,  or  noted  in  the 
justice's  docket,  is  good  as  against  one  who  takes  with  notice,  or 
without  payment  of  a  consideration,  Jones  v.  Glathart,  100  Ills.  Ap. 
630.  Mortgage  taken  with  intent  to  circumvent  and  anticipate  the 
vendor  in  securing  his  purchase  money — the  mortgagee  having  notice 
that  the  mortgageor  has  not  paid  for  the  goods — is,  though  first  re- 
corded, subordinate  to  a  mortgage  given  for  the  purchase  price,  Jones 
t'.  Glathart.  supra,  citing  Blachford  r.  Boyden,  122  Ills.  657;  Mont- 
gomery r.  Keppel,  75  Calif.  12S;  and  one  who  buys  such  prior  mortgage 
with  notice  of  facts  which  put  him  upon  inquiry,  is  in  no  better  posi- 
tion than  the  mortgagee,  Jones  v.  Glathart,  supra.  Twenty  hours 
were  permitted  to  elapse  between  the  sale  and  delivery  of  the  chattels 
and  the  recording  of  the  chattel  mortgage  for  the  purchase  money; 
held  that  in  this  interval  an  execution  then  in  the  hands  of  an 
officer  against  the  purchaser  became  a  perfected  lien  superior  to  the 
mortgage.  Self  v.  Sanford,  4  Ills.  Ap.  328.  A  purchase  money  mort- 
gage given  by  the  tenant  is  superior  to  the  landlord's  lien  for  the 
rent  afterwards  accruing,  Arnold  v.  Hewitt,  la.  104  N.  W.  843. 

Securing  Several  Xotes. — Mortgage  to  secure  a  series  of  notes  ma- 
turing at  different  dates,  those  first  to  mature  must  first  be  paid  from 
the  proceeds  of  the  mortgaged  chattels,  Campbell  Co.  v.  Roeder,  44  Mo. 
Ap.  324;   and  the  equities  of  i)arties  may  be  adjusted  in  replevin.     Id. 

For  Indemnity. — Mortgage  given  as  an  indemnity  cannot  be  fore- 
closed until  the  event  against  which  it  is  a  provision,  has  occurred,  or 
the  mortgageor  has  suffered  the  damage  for  which  ths  indemnity  was 
P'-ovided,  Honaker  v.  Vesey,  57  Neb.  413.  77  N.  W.  1100.  If  the  sure- 
ties in  a  promissory  note,  without  the  knowledge  of  the  creditor,  take 
and  record,  for  their  own  indemnity,  a  mortgage  to  the  creditor  se- 
curing the  note,  in  seeking  to  enforce  such  mortgage,  the  facts  must  be 
pleaded;  it  will  not  be  admissible  to  seek  the  foreclosure  of  the 
mortgage  as  assignees  of  the  note,  averring  payment  by  themselves, 
Wittaker  v.  Sanders,  Tex.  Civ.  Ap.  52  S.  W.  638. 

Whore  a  mortgage  Is  given  to  indemnify  a  siirety  against  liability, 
the  mortgagee  may,  on  default,  replevy  the  goods  without  jiaying 
the  debt.  Pierce  v.  Batten  3  Kans.  Ap.  396,  42  Pac  924,  citing  Bates  v. 
WIggln.  37  Kans.  44,  14  Pac.  442.  Such  a  mortgage  and  the  promissory 
note  therein  described  may  l)e  aKslgned  to  the  holder  of  the  prln- 
<lpal  debt,  Bodley  v.  Anderson.  2  IIIh.  Ap.  450;— if  the  mortgiige  so 
provide.  It  matureH  with  the  principal  debt,  and  mortgagee  uuiHt 
then  UKHume  poHH«-HHlori  of  the  goods  or  iosf  his  security,  even  though 
the  promlHHory  note  deucribcd   In   the  mortgage  Ih  not  yet  due  by   Its 


190  THE  LAW  OF  REPLEVIN. 

terms.  Bodley  v.  Anderson,  supra.  But  if  a  bill  of  sale,  given  as  an 
Indemnity  expressly  provides  that  the  vendor  shall  retain  the  goods, 
sell  them,  and  apply  the  proceeds  to  discharge  a  chattel  mortgage 
thereon,  the  vendee  cannot  maintain  replevin,  Rogers  i\  Nideffer, 
Ind.  T.  82  S.  W.  673. 

Tu  Secure  Future  Advatices  or  Debts  to  Accrue  in  the  Future. — A 
mortgage  of  chattels  may  effectually  be  made  to  secure  subsequent 
advances.  It  affects  one  who  purchases  the  goods  with  notice,  Davis 
r.  Carlisle,  Ind.  T.  82  S.  W.  682.  Parol  evidence  is  not  admissible  to 
show  an  agreement  by  the  mortgagee  to  make  other  advances  than 
those  named  in  the  mortgage,  Carraway  v.  Wallace,  Miss.  17  So.  930. 
If  mortgagor  continue  purchasing  after  mortgagee  has  refused  particu- 
lar advances,  until  the  full  amount  covenanted  for  has  been  advanced, 
he  will  not  be  heard  to  complain  of  the  prior  refusal,  Id.  A  mortgage 
cannot  be  extended  to  cover  advances  not  covenanted  for,  nor  con- 
templated at  the  time  of  its  execution,  Sims  v.  Mead,  29  Kans.  124. 
Mortgage  given  to  secure  in  part  the  value  of  plantation  supplies  to 
be  furnished  for  the  cultivation  of  a  certain  plantation;  mortgagee  by 
abandoning  the  plantation  and  the  attempt  to  make  a  crop,  excuses 
future  advances,  and  the  mortgage  may  be  enforced  for  the  advances 
already  made.  Cartwright  v.  Smith,  104  Tenn.  689,  58  S.  W.  331.  A 
mortgage  to  secure  rents  subsequently  to  mature,  according  to  the 
terms  of  a  lease  recited  or  contained  in  the  mortgage,  takes  pre- 
cedence of  a  sale  by  the  mortgagor  as  security  for  rents  accruing  sub- 
sequent to  such  sale,  even  though  at  the  date  of  the  sale  no  rent  was 
in  arrear,  Esshom  v.  Watertown  Co.,  7  S.  D.  74,  63  N.  W.  229. 

Foreign  Mortgage. — A  mortgage  in  one  state,  of  chattels  being  there, 
acknowledged  and  recorded  in  that  state  according  to  its  laws,  binds 
the  goods  when  carried  into  another  state,  even  as  against  a  bona  fide 
purchaser.  Smith  v.  McLean,  24  la.  322;  Kerfoot  v.  The  State  Bank,  14 
Okl.  104,  77  Pac.  46.  The  rule  is  based  upon  the  comity  of  states 
and  not  upon  the  theory  that  the  record  imparts  notice.  And  the 
mortgage  affects  a  subsequent  purchaser  of  the  goods  in  another  state, 
to  which  they  have  been  removed  without  the  privity  of  the  mort- 
gagee, even  though  the  purchase  be  in  open  market,  and  full  value 
paid,  Schmidt  v.  Rankin,  Mo.  91  S.  W.  78;  Creelman  Company  v.  . 
Lash,  73  Ark.  16,  83  S.  W.  320,  citing  Shephard  v.  Hynes,  45  C.  C.  A. 
271.  104  Fed.  449,  52  L.  R.  A.  675;  Alferitz  v.  Ingalls,  83  Fed.  964. 
Contra.  Corbett  v.  Littlefield,  84  Mich.  30,  47  N.  W.  581;  Snyder  v. 
Yates,  112  Tenn.  309,  79  S.  W.  796,  distinguishing.  Bank  of  Louisville 
V.  Hill,  99  Tenn.  42,  41  S.  W.  349,  and  Hughes  v.  Abston,  105  Tenn.  70, 
58  S.  W.  296. 

Mortgage  by  Partner. — A  mortgage  by  a  partner  of  the  goods  of 
the  firm  binds  the  interest  of  the  other  partner  if  he  assent  to  it 
at  the  time,  Smith  r.  McLean,  24  la.  322.  A  mortgage  by  one  part- 
ner of  his  interest  in  the  partnership  stock  to  secure  his  individual 
debt,  is  void  as  against  partnership  creditors,  Harvey  v.  Stephens,  159 
Mo.  486,  60  S.  W.  1055.     A  mortgage  of  firm  property  by  one  partner 


CHATTEL     MORTGAGE.  191 

-without  the  knowledge  of  the  other,  and  with  intent  to  defraud  the 
latter  is  voidable;  and  if  the  non-consenting  partner  obtain  possession 
of  the  goods  it  seems  that  the  purchaser  at  a  sale  under  the  mortgage 
will  not  be  allowed  replevin  as  against  him,  Walsh  v.  Taitt,  Mich.  105 
N.  W.  544.  A  partner  cannot  mortgage  partnership  goods  to  secure 
his  individual  debt  without  the  consent  of  the  other  partner,  Sedalia 
Bank  v.  Cassiday  Co.,  Mo.  Ap.  84  S.  W.  142.  And  such  mortgage 
even  though  executed  by  all  of  the  partners  is  void  as  to  the  firm 
creditors.  Upon  the  death  of  the  debtor  partner  the  survivors  are 
entitled  to  possession,  as  against  the  mortgagee,  for  the  purpose  of 
discharging  the  debts  of  the  firm,  Enck  v.  Gerding,  67  O.  St.  245, 
65  N.  E.  880. 

Execution,  Acceptance. — Acceptance  by  the  mortgagee  is  essential 
to  the  validity  of  the  mortgage.  Wells  v.  German  Co.,  la.  105  N.  W. 
123;  and  will  not  be  presumed  from  the  mere  fact  that  it  is  beneficial, 
Whitaker  v.  Sanders,  Tex.  Civ.  Ap.  52  S.  W.  638,  citing  Milling  Co.  v. 
Eaton,  86  Tex.  401,   25   S.   W.   G14. 

A.  executed  a  mortgage  of  his  goods  to  B.  without  B.'s  knowledge, 
recorded  it  and  endorsed  the  note  therein  described  in  the  name  of 
B,  obtaining  the  money  on  it;  he  was  held  estopped  to  impeach  the 
genuineness  of  the  paper.  First  National  Bank  t\  Ragsdale,  158  Mo. 
668,  59  S.  W.  987.  But  a  delivery  to  the  party  beneficially  interested 
is  effectual  although  the  trustee  named  therein  has  no  knowledge 
of  it,  and  repudiates  it  upon  receiving  notice.  Wells  iK  German  Com- 
pany, la.  105  N.  W.  123.  A  mortgage  which  omits  to  state  the  day 
of  its  execution,  takes  effect  from  the  record,  Becker  v.  Bower,  Tex. 
Civ.  Ap.  79  S.  W.  45. 

Authentication.  Acknowledgment. — Error  in  the  date  of  the  certifi- 
cate of  acknowledgment,  the  record  being  of  the  proper  date,  does 
not  impair  the  validity  of  the  mortgage,  Durfee  v.  Grinnell.  G9  Ills. 
371.  An  acknowledgment  may  be  taken  by  a  justice  of  the  peace 
anywhere  in  his  county.  Id.: — and  where  the  statute  requires  a  minute 
of  the  mortgage  in  the  justice's  docket  it  is  not  essential  that  the 
docket  should  be  kept  in  his  township.  Id.  The  statute  requiring  a 
mortgage  to  be  acknowledged  in  the  town  or  election  district  in  which 
the  mortgageor  resides,  an  acknowledgment  before  a  police  magistrate 
having  by  statute  the  same  jurisdiction  as  a  justice  of  the  peace  and 
elected  in  the  town  in  which  the  mortgageor  resides,  though  not  in 
the  same  election  district,  was  sustained,  Ticknor  v.  McClelland.  S4 
Ilia.  471.  In  Kansas  a  mortgage  by  words  is  valid  between  the  parties, 
though  the  posesslon  remain  with  the  mortgageor,  Weil  v.  Hyus,  89 
Kans.  564,  18  Pac.  524.  The  acknowledgment  of  the  mortgage  of  a 
Blave  need  not  declare  that  the  deed  was  executed  on  the  day  of 
Its  date  nor  that  the  party  acknowledged  that  he  "  slgni-d,  sealed  and 
delivered;  "  an  acknowledgment  of  the  paper  "  as  his  free  act  and 
deed"  Ih  Bufflcient.  ParsoiiH  v.  Boyd.  20  Ala.  112;  the  statute  |)rovldlng 
that  every  chattel  mortgage  Hhal!  be  void  iinleKs  l(  appears  thereiiiKin. 
"over  the  Hignature  of  the  mortgageor.  that  a  true  copy  thereof  has 


192  THE    LAW    OF    REPLEVIN. 

been  delivered  to  and  received  by  him,"  a  mortgage  without  such 
receipt  apeparlng  subscribed  by  mortgageor,  will  not  sustain  replevin, 
even  against  a  third  person,  Park  v.  Robinson,  15  S.  D.  551,  91  N.  W. 
344.  The  mortgage  of  a  corporation,  acknowledged  three  days  prior  to 
the  resolution  of  the  directors  authorizing  it.  but  not  delivered  until 
after  such  resolution,  is  valid,  Gilbert  v.  Sprague.  88  Ills.  Ap.  508,  S.  C. 
196  Ills.  444.  fi3  X.  E.  993.  The  recitation  of  the  mortgage  do  not 
preclude  the  mortgagee  from  showing  the  residence  of  the  mort- 
gageor. Id.  If  the  mortgageor  in  fact  resided  in  the  town  where  he  made 
the  acknowledgment,  a  false  recitations  of  his  residence  in  the  mortgage 
does  not  impair  its  validity.  Id.  Objections  to  the  acknowledgment 
founded  upon  the  residence  of  parties,  must  be  made  in  the  first  in- 
stance. l^I(Carthy  v.  Hetzner.  70  Ills.  Ap.  480.  No  proof  need  be  made 
of  the  ofTicial  character  of  the  officer  who  certifies  the  acknowledgment, 
unless  objection  is  made  upon  this  ground  specifically.  Id.  Under 
the  code  of  North  Carolina,  probate  and  registration  of  a  mortgage 
is  prima  facie  evidence  of  its  execution,  Griffith  v.  Richmond,  126  N  C. 
377,  35  S.  E.  620.  A  mortgage  which  assumes  to  convey,  with  other 
goods,  the  household  furniture  of  a  family,  and  which  is  void  as  to 
this,  because  not  in  compliance  with  an  e.xpress  statute,  is  void  as  to 
all  its  contents,  Glidden  v.  Nason,  186  Mass.  140,  71  N.  E.  304. 

Iie(ord.  Xotice,  Precedence. — One  who  under  a  chattel  mortgage 
contests  the  claims  of  an  officer  who  has  levied  under  an  execution 
against  the  mortgageor,  must  show  that  the  mortgage  was  recorded, 
Kahn  v.  Hayes,  22  Ind.  Ap.  182,  53  N.  E.  430.  Disregard  of  the  re- 
quirement of  a  statute  that  a  mortgage  shall  be  attested  by  two  wit- 
nesses does  not  impair  its  effect  as  to  one  who  purchases  with  actual 
notice  of  the  mortgage,  Strahorn  Co.  v.  Florer,  7  Okla.  499,  54  Pac. 
710.  The  officer  who  justifies  under  an  attachment  as  against  one 
having  a  lien  not  recorded,  which,  by  statute,  is  subordinated  only 
to  the  claims  of  subsequent  purchasers  and  creditors  without  notice, 
has  the  burden  of  proof  that  the  creditor  whom  he  represents  was 
within  the  statute;  that  is,  that  he  attached  without  notice.  Singer 
Co.  V.  Nash,  70  Vt.  134,  41  Atl.  429.  Though  not  recorded  the  mortgage 
is  valid  as  against  the  mortgagee,  Thompson  v.  Dyer,  25  R.  I.  321,  55 
Atl.  824;  and  without  possession  delivered,  Warner  v.  Warner,  30  Ind. 
Ap.  578,  66  N.  E.  760.  And  though  the  mortgaged  chattels  constitute 
the  whole  estate  of  the  husband,  and  have  been  set  off  to  the  widow 
by  the  probate  court  as  her  separate  property,  the  widow  will  not 
be  heard  to  assail  the  mortgage  for  the  defect  of  a  record.  Id.  As  to 
property  at  the  time  in  possession  of  the  mortgagee  no  record  is  re- 
quired. Clark  V.  Williams.  Mass,  76  N.  E.  723; so  as  to  mortgaged 

chattels  in  the  hands  of  a  third  person  to  whom  notice  of  the  mort- 
gage is  given,  Clark  v.  Williams,  supra.  Actual  notice  of  a  prior 
mortgage  does  not  affect  a  subsequent  mortgagee  where  the  senior 
mortgagee  fails  to  file  the  notice  of  extention  required  by  the 
statute,  the  statute  declaring  that  the  mortgage  shall  in  such  case 
be  "  void  "  as  to  subsequent  purchasers  or  mortgagees  in  good  faith. 


CHATTEL     MORTGAGE.  195 

McKennon  v.  May,  39  Ark.  442.  A  mortgage  is  recorded  when  lodged 
for  record  with  the  proper  officer,  Parker  v.  Palmer,  13  R.  I.  359; 
Scaling  v.  First  National  Bank,  Tex.  Civ.  Ap.  87  S.  W.  715;  Heflin  v. 
Slay,  78  Ala.  180;  otherwise  if  he  is  instructed  not  to  record,  Parker  v. 
Palmer,  supra. 

In  Missouri  a  mortgage  of  chattels  affords  notice  to  all  the  world 
from  the  time  of  the  filing  thereof  for  record  in  the  office  of  the 
recorder;  a  purchaser  under  execution  subsequent  to  this  date  takes 
subject  to  the  mortgage.  Miller  v.  Whitson,  40  Mo.  97.  The  recorder's 
certificate  of  filing,  endorsed  upon  the  mortgage,  though  not  under  his 
seal,  was  received  as  evidence  of  the  filing,  Id.  In  Texas  the  record 
of  a  deed  absolute  of  personalty,  is  notice,  Monday  v.  Vance,  Tex. 
Civ.  Ap.  51  S.  W.  346.  A  chattel  mortgage  takes  precedence  of  an 
agister's  lien  depending  solely  upon  contract  with  the  mortgageor  sub- 
sequent to  the  record  of  the  mortgage,  Central  Bank  v.  Brecheisen,  0.5 
Kans.  807,  70  Pac.  895.  The  requirement  of  the  statute  that  the  mort- 
gage shall  be  void  as  to  creditors,  etc.,  after  the  expiration  of  one 
year  unless  within  a  time  specified  an  affidavit,  showing  the  interest 
of  the  mortgagee,  be  filed,  has  no  application  when  the  mortgagee, 
before  the  lapse  of  the  year,  assumes  possession.  Wood  v.  "Weimar, 
14  Otto.  (104  U.  S.),  786,  26  L.  Ed.  779.  Where  mortgaged  chattels 
were  sold  by  the  mortgageor  and  the  money  paid  to  a  bank  in  another 
county  from  that  in  which  the  mortgage  was  recorded,  to  apply  on  a 
precedent  debt,  the  bank  having  no  notice  of  the  mortgage;  held,  it 
could  not  be  charged  as  trustee,  Burnett  v.  Gustafson,  54  la.  80.  6 
N.  W.  132.  In  Illinois  a  chattel  mortgage  is  required  to  be  acknowl- 
edged before  a  justice  of  the  peace  and  a  minute  of  it  made  in  his 
docket.  An  entry  in  a  book  kept  expressly  for  the  purpose,  not  the  gen- 
eral docket,  suffices;  the  purpose  of  the  statute  is  to  afford  notice,  and 
a  substantial  compliance  is  all  that  is  required.  Pike  v.  Colvin,  67  Ills. 
227.  The  recital  in  a  chattel  mortgage  of  a  prior  lien  on  the  goods 
affects  the  mortgagee,  though  he  fail  to  read  such  recital,  Perkins  v. 
Best,  94  Wis.  168,  68  N.  W.  762.  A  mistake  in  the  record  as  to 
the  day  on  which  the  debt  matures,  the  year  and  month  being  given 
correctly,  is  not  misleading  and  cannot  avail  one  who  buys  from  the 
mortgageor  after  record  of  the  mortgage  and  prior  to  the  maturity 
of  the  debt,  even  according  to  the  record.  Buck  v.  Young,  1  Ind.  Ap. 
55S,  27  N.  E.  1106.  In  Wisconsin  a  mortgage  by  one  retaining  pos- 
session, not  recorded  in  the  proper  township,  is  invalid  as  again.st  a 
purchaser,  even  although  he  has  actual  notice  of  the  mortgage,  and 
that  the  debt  remains  unjjaid,  Paroskl  v.  Goldberg.  80  Wis.  339,  50 
N.  \V.  191.  A  statute  that  every  mortgage  or  conveyance  Inton.lrd 
to  operate  as  a  mortgage  of  chattels,  not  accompanied  by  an  immediate 
and  continued  change  of  possession,  is  void  against  creditors,  unless 
duly  filed,  etc.,  extends  to  a  bill  of  sale  absolute,  intended  as  security. 
Talrott  V.  Crlppen,  52  Mich.  633.  18  N.  W.  392;  a  mere  constructive 
poKHCHHlon  will  not  answer  tho  requirements  of  the  statute.  Sli'(lcnl)ach 
V.  Ililey.  Ill  N.  Y.  560,  19  N.  E.  275.  Notice  to  a  creditor  that  particu- 
13 


194  THE    LAW    OF    REPLEVIN. 

lar  goods  are  the  same  intended  to  be  conveyed  in  a  mortgage,  the 
description  in  that  instrument  being  vague,  affects  the  officer  who 
levies  the  execution  of  the  same  creditor,  Starr  t'.  Cox,  9  Kans.  Ap. 
882.  57  Pac.  247.  The  statute  provided  that  chattel  mortgages  should 
be  recorded  in  a  series  of  volumes  separate  from  those  used  for  con- 
veyances of  land;  there  was  in  fact  only  one  series  of  books  kept;  but 
the  transfers  of  personal  property  were  recorded  in  volumes  of  this 
series  distinct  from  those  in  which  conveyances  of  land  were  recorded; 
held,  this  was  a  substantial  compliance  with  the  statute,  Hume  Bank  v. 
Hartsock,  56  Mo.  Ap.  291.  Where  a  mortgage  conveys  both  lands  and 
goods,  a  record  in  the  volume  containing  only  conveyances  of  real 
estate,  is  suflBcient,  Jennings  v.  Sparkman,  39  Mo.  Ap.  663.  In  Indiana 
a  mortgage  not  recorded  within  ten  days  after  execution,  is  without 
effect  as  to  bona  fide  purchasers,  Ross  v.  Menefee,  125  Ind.  432,  25  N. 
E.  545;  but  a  mortgage  duly  recorded  binds  all  persons.  Id.,  Heflin  v. 
Slay.  "78  Ala.  ISO. 

It  seems  that  in  Michigan  the  agreement  of  a  merchant  that  he 
holds  his  stock  on  consignment  for  a  creditor  to  be  sold  for  the 
creditor's  account,  and  that  the  creditor  may  assume  possession  when 
he  has  reasonable  cause  to  deem  himself  insecure,  prevails  as  against 
a  subsequent  chattel  mortgage  first  recorded,  Norris  v.  Vosburg,  98 
Mich.  426,  57  N.  W.  264.  But  see  Sachs  v.  Norn,  Mich.,  102  N.  W. 
983,  and  Lingle  v.  Owasso  Co.,  Mich.,  102  N.  W.  639,  where  it  was  held 
that  under  a  statute  providing  that  a  chattel  mortgage  not  recorded 
or  accompanied  by  an  immediate  change  of  possession  shall  be  abso- 
lutely void  as  against  a  second  mortgagee  in  good  faith,  such  second 
mortgagee  may  avail  himself  thereof  although  his  mortgage  be  not 
recorded.  Several  mortgages  of  the  same  owner  upon  the  same  goods 
arc  to  be  satisfied  in  the  order  of  priority  of  record,  Washington  r. 
Love,  34  Ark.  93.  A  purchaser  from  the  mortgageor  with  actual  or 
constructive  notice  of  the  mortgage,  takes  subject  thereto.  Heflin  v. 
blay,  78  Ala.  180.  Where  possession  of  chattels  remains  with  the 
mortgageor,  an  unrecorded  mortgage  is  without  effect  as  to  third  per- 
sons, e.  g.,  a  receiver  of  the  estate  of  the  mortgageor,  Harrison  v. 
Warren  Co.,  183  Mass.  123,  66  N.  E.  589;  or  a  judgment  creditor,  or  a 
receiver  appointed  in  supplemental  proceedings,  Stephens  v.  Perrine, 
143  N.  Y.  476,  39  N.  E.  11;  as  to  any  and  every  creditor,  Russell  v. 
St.  Mart.  180  N.  Y.  355,  73  N.  E.  31;  as  to  a  junior  mortgagee  who 
takes  without  notice,  Patterson  v.  Irwin,  Ala.  38  So.  121.  If  the 
purchaser  leaves  the  purchased  property  in  possession  of  the  vendor, 
a  mortgage  by  the  purchaser  will  not  be  constructive  notice  to  sub- 
sequent purchasers  from  the  original  vendor,  Martin  v.  Le  San,  la. 
105,  N.  W.  996,  citing  Nuckolls  v.  Pence.  52  la.  582,  3  N.  W.  631. 
Mention  casually  made  to  an  agent  while  no  affair  of  the  principal 
is  pending,  and  having  no  reference  to  the  principal,  does  not  affect 
him,  Patterson  i'.  Irwin,  supra.  In  Missouri  a  chattel  mortgage  with- 
held from  record,  though  by  mere  inadvertence,  has  no  effect  as  to 
creditors  whose  debts  are  contracted  during  the  period  of  withholding. 


CHATTEL      MORTGAGE.  195 

Harrison  v.  South  Carthage  Co.,  106  Mo.  Ap.  32,  89  S.  W.  1160.  But 
the  negligent  omission  to  record  a  mortgage  is  not  conclusive  in  favor 
of  creditors  of  the  mortgageor,  as  to  its  fraudulent  character,  Ward  v. 
Parker,  la.  103,  N.  W.  104.  And  a  creditor  assailing  an  unrecorded 
mortgage  must  show  affirmatively  that  he  extended  credit  to  the 
mortgageor  upon  the  faith  of  his  apparent  ownership  of  the  chattels 
unincumbered.  Ward  v.  Parker,  la.  103,  N.  W.  104.  A  judgment  in  part 
for  indebtedness  accruing  before  the  execution  of  an  unrecorded  mort- 
gage, cannot  be  asserted,  as  against  such  mortgage  in  respect  to  any 
part  of  it.  The  whole  judgment,  by  such  confusion,  is  uninforcible 
against  the  mortgage  creditor.  Harrison  v.  South  Carthage  Company, 
supra.  A  record  not  authorized  by  law  is  not  notice,  Snyder  v.  Yates, 
112  Tenn.  309,  779  S.  W.  796.  So  of  a  chattel  mortgage  not  authenti- 
cated as  required  by  statute.  Its  record  does  not  afford  constructive 
notice,  Tisdale  v.  Pray,  N.  H.  62  Atl.  168.  And  the  record  of  a  mort- 
gage in  the  name  of  A.  W.  D.  is  not  notice  that  J.  W.  D.  executed  it. 
Johnson  v.  Wilson,  137  Ala.  468,  34  So.  392.  Even  though  the  mortgage 
was  given  for  the  purchase  money  of  the  mortgaged  chattels.  Id.  But 
if  duly  recorded  the  mortgage  is  constructive  notice,  Howard  v.  Deens. 
Ala.  39  So.  346;  and  a  record  in  a  series  of  books  kept  for  recording  mort- 
gages of  lands,  of  a  deed  of  trust  conveying  both  lands  and  chattels, 
is  effectual  as  to  both  and  constructive  notice  to  all  the  world,  I^ong  r. 
Gormand,  100  Mo.  Ap.  45,  79  S.  W.  181.  The  mortgagee  in  a  mortgage 
which  includes  usury  is  not  a  bona  fide  purchaser,  and  may  not  ob- 
ject to  the  failure  to  record  a  prior  mortgage,  Morris  v.  Bank  of 
Attalla,  Ala.  38  So.  804. 

Renewal. — Separate  affidavits  of  the  mortgageor  and  the  mortgagee 
made  at  the  same  time,  and  upon  the  same  paper,  are  to  be  taken 
together;  and  if  it  appears  from  the  two  that  there  was  an  agreement 
for  the  extension  of  the  mortgage,  and  the  two  taken  together  contain 
the  requirements  of  the  statute,  and  are  recorded  in  due  time,  the 
statute  is  satisfied,  Hamilton  v.  Seeger,  75  Ills.  Ap.  599.  The  statute 
required  an  affidavit  of  the  extension  of  a  mortgage  to  be  filed  within 
thirty  days  next  preceding  the  maturity  of  the  mortgaged  debt;  the 
debt  matured  at  midnight  November  21,  and  the  affidavit  was  filed 
on  that  day, — held  in  due  time,  the  21st  being  one  of  the  thirty  days 
next  preceding  the  maturity  of  the  debt.  Id. 

In  Kansas  a  mortgage  not  renewed  within  thirty  days  next  pre- 
ceding the  term  of  one  year  aftor  its  filing  becomes  void  as  to  creditors, 
unless  actual  possession  is  taken.  The  renewal  is  by  affidavit  filed 
In  the  proper  office.  Moore  r.  Shaw,  1  Kans.  Ap.  103,  40  Pac.  929;  If  the 
mortgagee  plead  actual  possession  taken  he  must  prove  It,  Id.  Frac- 
tions of  a  day  are  not  regarded;  the  year  expires  at  the  same  hour 
at  which  the  mortgage  was  filed  on  the  last  day  of  the  year,  Id.  There 
Ih  not  an  actual  and  continued  poHKeHHion  In  the  mortgagee  where  the 
mortgageor  contlniieH  In  the  management  and  control,  though  he  claims 
to  be  acting  as  ag<'nt  for  the  mortgagee.  /(/.•  where  the  affidavit  is 
required  to  be  filed   "  within   thirty  days  next  preceding  the  maturity 


196  THE    LAW    OF    REPLEVIN. 

of  the  debt,  days  of  grace  are  to  be  counted  in  determining  the  matur- 
ity. Gilbert  r.  Sprague,  88  Ills.  Ap.  508.  S.  C.  196  Ills.  444,  63  N.  E. 
99::. 

Subsequently  Acquired  or  t^ubstitutcd  Goods. — In  DeWolf  v.  Harris, 
4  .Mason,  531.  it  is  stated  as  a  manifest  proposition  that  where  goods  are 
assigned  by  way  of  security,  the  assignee  becomes  entitled  to  the 
proceeds  gained  by  the  exchange  thereof,  and  that  by  greater  reason 
the  rule  is  the  same  where  the  assignment  is  of  the  goods  "  and  the 
proceeds  thereof." 

I  have  not  found  this  case  cited  to  this  proposition  in  any  later 
authority. 

Mortgagee  cannot  hold  goods  substituted  for  those  described  in  the 
mortgage  unless  possession  is  delivered  before  other  liens  attach; 
and  even  then  his  right  is  cognizable  only  in  equity,  Simmons  v. 
Jenkins,  76  Ills.  479;  Schimerhorn  v.  Mitchell,  15  Ills.  Ap.  418;  but  in 
Michigan  it  was  held  that  additions  to  a  stock  of  mercahndise  made 
subsequent  to  a  mortgage  are  subject  thereto  if  the  mortgage  so 
declare.  Merrill  v.  Denton,  73  Mich.  628,  41  N.  W.  823;  Cadwell  v. 
Pray.  41  Mich.  307,  2  N.  W.  52.  New  material  purchased  to  supply 
the  wear,  tear  and  decay  of  a  newspaper  plant,  and  so  mingled 
with  the  original  as  not  to  be  readily  distinguished,  becomes  part  of 
the  mortgaged  property  by  acquisition.  Fowler  v.  Hoffman,  31  Mich. 
215,  citing  Willard  v.  Rice,  11  Mete.  493;  Loomis  v.  Green,  7  Greenl. 
49:^.;  Barron  v.  Cobleigh,  11  N.  H.  559;  Weatherbee  v.  Green,  22  Mich. 
317.  A  mortgage  of  "  all  furniture,  lumber  and  materials  "  in  a  certain 
factory,  which  was  described,  also  "  furniture  hereafter  made  in  said 
fartory,"  binds  the  furniture  afterwards  manufactured  from  the  mort- 
gaged materials,  Dehority  v.  Paxson,  97  Ind.  253.  A  lease  gave  the 
landlord  a  lien  upon  all  cattle  of  the  tenant  "  brought  upon  the 
premises;  " — held  subordinate  to  a  chattel  mortgage  executed  prior  to 
their  acquisition  by  the  tenant,  Parkhurst  v.  Sharp,  10  Kans.  Ap.  575, 
61  Pac.  531. 

In  Mississippi  it  is  settled  that  under  certain  limitations  a  mort- 
gage may  bind  future  acquisitions;  but  the  deed  must  refer  to  and  des- 
ignate particular  things  which  may  in  the  ordinary  course  of  things, 
and  with  reasonable  certainty,  come  into  being,  and  the  mortgageor 
must  at  the  date  of  the  mortgage  have  an  actual  interest  tn  presenti 
in  the  thing  from  which  the  subject  of  the  mortgage  is  subsequently 
to  arise,  e.  g..  the  wine  of  the  moirtgageors'  vineyard,  the  wool  of  his 
sheep,  or  the  product  of  his  fields.  Fidelity  Company  v.  Sturtevant, 
MiFS.  38  So.  783. 

The  thing  out  of  which  the  mortgaged  product  is  to  arise  must 
be  described  with  certainty.  Id. 

Where  mortgaged  chattels  are  exchanged  for  others,  with  one  having 
notice  of  the  mortgage,  the  mortgagee  has  an  equitable  lien  upon  the 
thing  given  in  exchange,  and  may  assert  it  in  an  action  of  replevin 
brought  by  the  party  who  made  the  exchange,  and  who  claims  the 
goods   under   a   chattel    mortgage   for   a  balance   unpaid   of  the   price 


CHATTEL     MORTGAGE.  197 

of  the  goods  which  he  gave  in   the  exchange,  American  Company  v. 
Futrall,  Ark.  84  S.  W.  505. 

Where  the  mortgage  provided  for  replenishing  the  stock  of  merchan- 
dise mortgaged  so  that  the  same  should  be  kept  salable  and  that 
the  newly  purchased  goods  should  be  subject  to  the  mortgage,  it  was 
held  that  the  mortgagee  obtaining  possession  before  the  rights  of 
third  parties  intervene  had  both  an  equitable  and  legal  title,  Burford  v. 
First  National  Bank.  30  Ind.  Ap.  384,  66  N.  E.  78. 

In  Massachusetts  after  acquired  property  does  not  pass  to  the 
mortgagee  as  against  subsequent  purchasers  or  incumbrancers,  even 
though  the  mortgage  so  provide;  yet  such  provision  in  the  mortgage 
operates  as  an  executory  agreement  and  the  mortgagee  may  seize 
and  sell  the  goods  at  any  time  before  the  rights  of  a  third  party 
intervenes;  and  a  mere  creditor  without  lien  will  not  be  heard  after- 
ward to  complain,  Wasserman  v.  McDonnell,  Mass.  76  N.  E.  959. 

Mortgagee  in  Possession  icith  Power  to  Sell. — If,  by  any  arrange- 
ment, expressed  or  implied,  between  mortgageor  and  mortgagee,  the 
former  continues  selling  the  merchandise  mortgaged,  for  his  own  bene- 
fit, the  mortgage  is  void  as  against  creditors,  Simmons  v.  Jenkins,  76 
Ills.  479;  Wright  v.  Texas  Co..  Tex.  Civ.  Ap.  90  S.  W.  905;  White  v. 
Graves,  68  Mo.  218;  Wilson  v.  Voight,  9  Colo.  614.  Only  as  against 
creditors  who  become  such  after  its  execution  and  before  its  record, 
Chapin  v.  Jenkins,  50  Kans.  385,  31  Pac.  1084;  Standard  Co.  v.  Schultz, 
45  Kans.  52,  25  Pac.  625;  Rathbun  v.  Berry,  49  Kans.  735,  31  Pac.  679; 
Smith  V.  Epley,  55  Kans.  71,  39  Pac.  1016.  Mortgage  of  merchandise 
left  in  the  hands  of  the  mortgageor  for  sale,  with  the  consent  of  the 
mortgagee,  is  fraudulent  as  to  creditors,  Schemerhorn  v.  Mitchell,  15 
Ills.  Ap.  422;  but  only  presumptively  so,  and  good  faith  may  be  shown, 
Lorton  v.  Fowler,  18  Neb.  224,  24  N.  W.  685;  First  National  Bank  v. 
Calkins,  16  S.  D.  445,  93  N.  W.  646.  That  the  mortgageor  of  a  stock 
of  merchandise  remains  in  possession  disposing  of  the  goods  in  the 
ordinary  way,  is  a  circumstance  tending  to  prove  fraud  but  is  not 
conclusive,  Heidiman  Benoist  Co.  v.  Schott,  59  Neb.  20,  80  N.  W.  47. 
Mortgage  by  merchant  of  specific  articles,  a  show-case,  tools,  stoves, 
etc ,  the  goods  being  suffered  to  remain  in  the  store,  but  segregated 
from  the  stock;  held,  that  being  capable  of  use  without  sale,  the  power 
"  to  use  and  enjoy  "  was  not  a  power  to  sell,  and  the  mortgage  was 
sustained,  Wilson  v.  Jones,  Colo.  Ap.  78  Pac.  622.  Many  cases  hold 
that  a  provision  in  the  mortgage  of  merchandise  that  the  mortgageor 
shall  "  retain  and  use  "  the  goods  until  default,  imports  an  authority 
to  sell,  and  is  therefore  void;  but  in  Sargent  v.  Chapman,  12  Colo.  Ap. 
529,  56  Pac.  194,  It  was  doubted  whether  those  words  should  be  given 
this  effect  in  tho  face  of  an  express  covenant  not  to  sell;  and  later 
in  the  same  Court  when  the  mortgage  of  a  stock  of  merchandise 
was  conditioned  that  "  until  default  made  in  some  one  or  more  of 
the  agreements,  covenantK  and  (ondltions  above  or  hereinafter  men 
tinned,"  the  niortganeDr  "  mjiy  keep,  retain  andiiHe  the  said  goods 
and  chattels,"  also  contaiued  a  provision  that  until  full  payment,  etc., 


198  THE    LAW    OF    REPLEVIN. 

the  mortRagcor  would  not  "sell  or  disi)ose  of"  the  goods  or  chattels 
or  any  part  there^of  without  the  written  consent  of  mortgagee;  held, 
while  the  use  ordinarily  made  of  a  stork  of  merchandise  is  to  sell 
it,  and  that  to  confer  upon  the  mortgageor  authority  to  use  in  such 
case,  is  in  effect  a  power  to  sell,  and  the  mortgage  therefore  void  as 
to  creditors,  yet  the  covenant  "  not  to  sell  or  dispose  of."  etc.,  must  be 
held  to  control  the  other  provisions  of  the  mortgage  and  limit  its 
terms  to  some  other  manner  of  use.  and  the  mortgage  was  sustained 
as  against  an  attaching  creditor.  The  report  does  not  show  whether 
in  fact  sales  had  been  made,  or  whether  the  mortgagee  had  knowledge 
thereof.  Estes  v.  First  National  Bank,  15  Colo.  Ap.  526,  63  Pac.  788. 
In  Wilson  v.  Voight,  9  Colo.  614,  13  Pac.  626,  where  the  mortgage 
included  both  merchandise  and  other  chattels  and  the  mortgageor  re- 
mained in  possession,  and  was  permitted  to  sell  and  retain  the  pro- 
ceeds, the  mortgage  was  declared  void  as  to  both  species  of  property; 
but  in  Chandler  v.  Colcord,  1  Okla.  260.  32  Pac".  330.  it  was  held  that  such 
a  mortgage  might  be  void  as  to  the  merchandise,  and  valid  as  to  the 
other  properties.  Mortgage  of  dairy  stock  kept  for  permanent  use,  a 
sale  of  two  of  the  animals,  not  consented  to  by  the  mortgagee,  is 
not  within  the  rule  in  the  above  cases,  and  the  court  is  not  at  liberty 
to  say  as  a  matter  of  law  that  it  was  the  intention  of  the  parties 
to  confer  upon  the  mortgageor  the  power  of  disposition,  Starr  v.  Cox, 
9  Kans.  Ap.  882,  57  Pac.  247.  A  power  of  sale  in  the  mortgageor  will 
be  implied  in  the  mortgage  of  a  dairy  farm,  where  authority  is  ex- 
pressly given  by  the  mortgage  to  substitute  other  chattels  for  those 
described.  Goddard  v.  Jones,  78  Mo.  518;  but  this  doctrine  was  held 
inapplicable  where  the  mortgage  of  a  saw-mill  provided  that  other 
property  of  the  same  kind  bought  by  the  mortgagor,  or  "  substituted 
to  supplj'  breakage,  loss  or  waste."  and  "  all  property  of  similar  kind 
hereafter  acquired  and  used  in  connection  with  said  saw-mill,  whether 
added  to  or  substituted  for  the  same  under  the  circumstances  afore- 
said," should  be  subject  to  the  lien  of  the  mortgage,  Jennings  v. 
Sparkman,  39  Mo.  Ap.  663.  Where  the  infirmity  of  the  mortgage  in 
this  respect  appears  upon  its  face  the  court  must  declare  it  void;  if 
extrinsic  evidence  is  adduced  to  show  that  this  was  the  actual  intent 
of  the  parties,  the  question  is  for  the  jury.  Jennings  v.  Sparkman, 
supra.  Provision  in  a  chattel  mortgage  of  merchandise  that  the  mort- 
gageor shall  remain  in  possession  selling  and  applying  the  proceeds, 
less  necessary  expenses,  to  the  mortgage  debt,  is  valid.  Burford  v. 
First  National  Bank.  30  Ind.  Ap.  384,  66  N.  E.  78;  Pritchard  v.  Hooker, 
Mo.  Ap.  90  S.  W.  415.  The  result  is  the  same  where  there  is  an 
oral  agreement  that  the  stock  shall  be  kept  up,  even  though  there  is 
no  express  agreement  that  the  proceeds  of  sale  shall  be  applied  on 
the  mortgage  debt.  Ward  v.  Parker,  la.  103  N.  W.  104.  So  where 
the  agreement  was  that  the  mortgageor  should  sell  the  mortgaged  prop- 
erty only  to  the  mortgagee,  or  if  to  others,  the  shipment  should  be  in 
the  name  of  the  mortgagee,  and  the  proceeds  remitted  by  the  purchaser 
directly  to  the  mortgagee,  to  apply  on  the  mortgage,  Morton  v.  William- 


CHATTEL    MORTGAGE.  199 

son,  72  Ark.  390,  81  S.  W.  235.  Power  in  the  mortgagee  to  exchange  the 
horses  mortgaged  for  others,  which  shall  stand  in  the  place  of  those 
exchanged,  does  not  warrant  a  sale,  Cooper  v.  RIcKee,  Ky.  89  S.  W.  203. 
Mortgagor  retaining  possession  contrary  to  the  Mortgage. — In  Illi- 
nois the  law  makes  possession  of  chattels  by  the  mortgageor  contrary 
to  the  terms  of  the  mortgage,  fraudulent  per  se  as  to  creditors,  e.  </., 
if  the  mortgageor  retain  possession  after  default  made,  and  the 
mortgage  provide  that  he  may  retain  possession  only  until  default. 
Where  parties  reside  in  the  same  county  a  failure  to  assume  posses- 
sion within  one  day  after  default  exposes  the  goods  to  the  mortgageor's 
creditors,  Reese  v.  Mitchell,  41  Ills.  365;  so  also  in  Colorado,  Atchison 
V.  Graham,  14  Colo.  217,  23  Pac.  876.  Where  the  mortgage  debt  ma- 
tured upon  Saturday  assumption  of  possession  by  the  mortgagee  at 
any  time  on  the  following  Monday  was  held  to  be  in  apt  time.  Allen  v. 
Steiger.  17  Colo.  552,  31  Pac.  226.  Mortgagee  is  not  required  to  take 
possession  at  the  very  instant  of  a  default ;  he  is  allowed  a  reasonable 
time,  according  to  the  circumstances  of  the  case,  and  his  right  is  not 
dependent  upon  actual  assumption  of  possession.  Mortgagee  demanded 
the  goods  promptly  on  the  maturity  of  the  debt,  and  being  refused 
brought  replevin  before  a  justice  of  the  peace;  the  mortgageor  gave 
a  forthcoming  bond  and  retained  the  goods;  the  justice,  a  few  days 
after  the  trial,  gave  judgment  in  the  mortgagee's  absence,  dismissing 
th*^  action,  because  the  value  exceeded  his  jurisdiction.  A  creditor  of 
the  mortgageor  then  levied  execution  upon  the  goods;  two  days  later 
the  mortgagee  demanded  the  goods,  and  it  was  held  he  had  acted  with 
diligence.  Crocker  v.  Burns,  13  Colo.  Ap.  54,  56  Pac.  188.  Putting 
a  custodian  in  posession  with  instructions  not  to  allow  the  mortgageor 
to  use  the  mortgaged  animals,  is  a  sufficient  possession  as  against 
creditors  of  mortgageor,  though  the  animals  are  left  on  the  mortgageor's 
premises,  Gaines  v.  Becker,  7  Ills.  Ap.  315.  The  statute  provided  that 
a  mortgage  of  chattels,  possession  remaining  with  the  mortgageor, 
shall  if  duly  acknowledged  and  recorded,  "  be  good  and  valid  *  *  * 
until  maturity  of  the  entire  debt  or  obligation,  provided  such  time 
shall  not  exceed  two  years";  a  mortgage  to  secure  several  promissory 
notes,  some  not  maturing  within  two  years,  was  held  void  as  against 
creditors  even  in  respect  to  the  notes  maturing  within  the  two  years; 
and  the  insecurity  clause,  and  an  election  of  the  mortgagee  thereunder, 
within  two  years  from  the  recording  of  the  mortgage  to  declare  the 
whole  debt  due  did  not  effect  this  result.  Silvis  v.  Auitman.  141  Ills. 
632.  31  N.  E.  11.  But  the  statute  having  been  amended  by  a  proviso 
that  "  unless  within  thirty  days  next  preceding  the  expiration  of  surh 
two  yfars  the  mortgagee  shall  file  •  •  •  an  affidavit  "  setting 
forth  the  amount  r«'niainlng  due,  and  that  thereupon  "the  niortgag*' 
lien  •  •  •  shall  be  continued  •  ♦  •  for  and  during  •  •  • 
two  yearw  from  the  filing  of  Huch  affidavit  or  until  the  maturity  of 
the  indebtedneHB,"  it  was  held  that  a  niortgagi'  made  after  this  amend- 
ment, to  Becure  an  IndebtedneKH  not  maturing  within  two  years,  was 
valid,  and  that  a  levy  made  before  the  lapse  of  two  years  was  tortious. 


200  THE    LAW    OF    REPLEVIN. 

Keller  r.  Robinson,  153  Ills.  458.  38  N.  E.  1072.  There  must  be  an  actual 
and  continued  change  of  possession,  and  where  the  mortgaged  chat- 
tels consisted  of  the  furniture  of  a  hotel,  and  the  mortgagee,  after 
maturity  of  the  mortgage,  continued  the  ostensible  proprietor  in  charge, 
there  was  no  such  change  of  possession  as  the  law  requires.  Moore  v. 
Shaw,  1  Kans.  Ap.  103,  40  Pac.  929;  and  it  is  not  competent  for  a  wit- 
ness to  testify  upon  such  Issue  that  the  plaintiff  "  had  possession," 
this  is  a  mere  conclusion,  Id.  In  Nebraska,  mortgageor  remaining  in 
possession  after  default,  the  mortgage  is  presumptively  fraudulent; 
the  presumption  may  be  overcome  by  proof  of  execution  in  good  faith 
to  secure  a  bona  fide  debt.  Houck  v.  Linn,  48  Neb.  228,  6C  N.  W. 
1103.  Where  the  statute  provides  that  to  the  validity  of  a  chattel 
mortgage  immediate  possession  shall  be  essential,  a  delay  of  nearly 
six  months  renders  it  inoperative,  even  as  against  a  receiver  in  in- 
solvency of  the  mortgagor.    Pryor  v.  Gray,  N.  J.  Eq.,  62  Atl.  439. 

Liens  created  by  the  Mortgagor. — Where  by  the  terms  of  the  mortgage 
possession  is  to  remain  with  the  mortgagor,  he  may  by  procuring  neces- 
sary repairs  upon  the  mortgaged  article  create  an  artificer's  lien  superior 
to  the  mortgage.  Rupert  v.  Zang,  N.  J.  L.,  62  Atl.  998.  In  Hammond  v. 
Danielson,  126  Mass.  294,  the  mortgagor  of  a  hack  which,  by  the  terms 
of  the  mortgage  the  mortgageor  was  entitled  to  retain  until  default,  had 
procured  repairs;  and  having  failed  to  pay  for  the  same,  the  mechanic 
detained  it  for  the  satisfaction  of  his  demand;  it  was  held  that  inas- 
much as  it  was  the  manifest  intention  of  the  mortgage  that  the  hack 
should  continue  in  use,  and  be  kept  in  a  proper  state  of  repair  for 
that  purpose,  the  mortgageor  was  impliedly  authorized  to  procure  the 
repairs  and  charge  the  thing  with  a  lien  superior  to  the  mortgage. 
"Where  a  lien  is  given  by  statute  to  one  who  feeds  and  sustains  animals 
"  at  request  of  the  one  in  lawful  possession  thereof,"  a  mortgageor  in 
possession  may  confer  upon  the  agister  a  lien  superior  to  the  mort- 
gage. Smith  V.  Stevens,  36  Min.  303,  31  N.  W.  55.  But  an  agister's 
lien  given  by  a  statute  is  inferior  to  the  lien  of  chattel  mortgage  previ- 
ou.?ly  recorded,  unless  the  statute  manifests  an  intention  to  give  it 
precedence;  the  lien  depends  upon  and  is  limited  by  the  statute.  Ranch 
V.  Ripley,  127  Ind.  151,  26  N.  E.  70.  In  State  Bank  v.  Lowe,  22  Neb. 
68,  33  N.  W.  482,  the  statute  provided  that  when  any  person  shall  hire 
another  to  feed  and  take  care  of  any  live  stock  "  it  shall  not  be  law- 
ful for  him  to  gain  possession  of  the  same  by  writ  of  replevin  until 
he  has  tendered  the  contract  price  or  a  reasonable  compensation  for 
taking  care  of  the  same."  The  defendant  was  in  possession  of  live 
stock  as  an  agister  under  contract  with  the  mortgageor  in  a  prior  mort- 
gage, duly  recorded.  It  was  held  that  the  operation  of  the  statute 
extended  no  further  than  the  person  making  the  contract,  and  conse- 
quently the  right  of  the  agister  was  inferior  to  that  of  the  mortgagee. 
In  Easter  v.  Goyne,  51  Ark.  222,  11  S.  W.  212,  it  was  held  that  unless 
a  contrary  intention  be  manifested  in  the  statute,  an  agister's  lien 
is  subordinate  to  that  of  a  prior  registered  mortgage.  The  same  result 
■was   reached  in  McGhee  v.  Edwards,  87  Tenn.  506,  11  S.  W.  316,  the 


CHATTEL     MORTGAGE.  201 

court  citing  Burns  v.  Pigot,  9  C.  &  P.  208,  where  it  was  held  that  the 
innkeeper  has  no  lien  upon  a  horse  placed  in  his  stable  by  one  not  a 
guest  nor  the  owner  of  the  animal;  and  Broadwood  i\  Granara,  10 
Exch.  417,  where  it  was  held  that  an  innkeeper  gains  no  lien  on  prop- 
erty not  belonging  to  a  guest,  but  sent  to  the  hotel  by  the  manu- 
facturer for  the  temporary  use  of  a  guest.  But  in  Case  v.  Allen,  21 
Kans.  217,  it  was  declared,  in  a  well-reasoned  opinion,  that  the  mort- 
gagee of  live  stock  in  possession,  according  to  the  terms  of  the  mort- 
gage, might  effectually  charge  them  with  an  agister's  lien  for  their 
maintenance,  which  will  be  superior  to  the  lien  of  the  mortgage.  The 
court  says  that  the  possession  of  the  agister  was  rightful;  that  his 
lien  was  given  by  the  statute;  that  his  service  was  as  much  for  the 
interest  of  the  mortgagee  as  of  the  mortgageor;  and  that  where  the 
mortgagee  leaves  the  possession  with  the  mortgageor,  he  must  be  deemed 
to  assent  to  the  creation  of  the  lien  given  for  any  expenditure  reason- 
able and  necessary  for  the  preservation,  or  ordinary  repair  of  the  thing 
mortgaged,  and  that  it  is  essential  that  this  should  be  the  rule  for  the 
protection  of  the  mechanic  or  other  person  given  a  lien  for  labor  or 
material  furnished,  for  the  sustenance  or  betterment  of  the  mort- 
gaged chattel.  Where  the  statute  gives  the  laborer  a  lien  upon  the 
property  of  the  employer,  and  provides  that  when  the  property  of  an 
employer  is  placed  in  the  hands  of  a  receiver,  assignee  or  trustee, 
claims  due  for  labor  performed  within  three  months  prior  to  the  ap- 
pointment of  such  assignee  shall  be  first  paid,  a  chattel  mortgage  takes 
precedence  of  the  wages  of  the  laborer.  The  right  of  redemption  is 
in  such  case  all  the  right  that  the  mortgageor  has.  The  chattels  them- 
selves are  not  the  property  of  the  employer,  but  of  the  mortgagee.  St. 
Mary's  Company  v.  National  Co.,  68  O.  St.  535,  67  N.  E.  1055. 

Where  the  statute  giving  the  agister  a  lien  expressly  declares  that 
"  nothing  herein  shall  be  considered  as  impairing  or  affecting  the 
right  of  parties  to  create  liens  by  contract,"  the  lien  of  the  agister 
is  inferior  to  that  of  a  prior  mortgage  of  which  he  has  notice;  even 
though  the  mortgagee  knows  the  animals  are  being  kept  at  the 
agister's  stable.     Masterson  v.  Pelz.  Tex.  Civ.  Ap.  86  S.  W.  56. 

A  purchase  money  mortgage  given  by  the  tenant  is  superior  to  the 
landlord's  lien  for  the  rent  afterwards  accruing.  Arnold  i'.  Hewitt, 
la.  104  N.  W.  843. 

A  mortgage  of  crops  to  be  grown  upon  specified  lands  is  inferior  to 
the  right  of  one  who  has  bargained  the  land  to  the  mortgageor  upon 
credit,  with  provision  that  if  he  fails  to  make  certain  payments  at 
Hppcifiod  times  he  is  to  become  at  once,  and  without  notice  or  re-entry, 
a  tenant  of  the  vendor;  and  this  1h  true  even  though  the  mortgage  i» 
taken  without  notice  of  this  agreement.  British  Company  v.  Cody, 
135  Ala.   622.  33   So.   833. 

Insecurity  Clause. — ProvlHo,  that  tin-  mortgageor  shall  retain  posses- 
sion until  maturity  of  the  debt,  but  that  the  mortgagee  may  take  pos 
seseion  at  any  time  he  "  Bhall  think  the  property  in  danger  of  being 
Hold,    removed,    etc.,"    the    mortgagee    cannot    pro(ec<l    arbitrarily;     he 


202  THE    LAW    OF    REPLEVIN. 

must  show  that  he  acted  upon  circumstances  which  would  have  in- 
spired a  reasonable  person  with  the  belief  of  danger.  Furlong  v.  Cox, 
77  Ills.  293;  Davenport  v.  Ledger,  80  Ills.  574;  Deal  v.  Osborne,  42 
Minn.  102.  43  N.  W.  835;  Brown  v.  Hogan.  49  Neb.  74G.  69  N.  W.  100; 
Allen  V.  Corney,  Neb.  94  N.  W.  151;  National  Bank  v.  Teat,  4  Okla. 
454.  46  Pac.  474;  Brook  v.  Bayless,  6  Okla.  568,  52  Pac.  738.  The  mort- 
gajree  is  the  sole  judge  of  the  crisis,  but  he  must  act  in  good  faith  and 
upon  probable  cause;  if  he  has  no  reasonable  grounds  to  apprehend 
danger,  the  taking  is  unlawful.  Roy  v.  Goings,  96  Ills.  361;  Fellor  v. 
McKillip,  109  Mo.  Ap.  61.  81  S.  W.  641.  The  cause  must  be  some  cause 
not  existing  at  the  date  of  the  mortgage.  The  mortgagee  is  authorized 
to  replevy  the  goods  from  the  officer  who  has  taken  them  under  ex- 
ecution against  the  mortgageor,  Lewis  v.  D'Arcy,  71  Ills.  648;  but 
only  after  demand  made.  Simmons  v.  Jenkins,  76  Ills.  479.  The  action 
must  be  in  the  detinet  and  not  in  the  vepit.  The  mortgagee  sued  in 
trespass  for  seizing  the  goods  under  this  clause  may  prove  his  in- 
structions to  the  person  making  the  seizure,  and  if  the  goods  were 
taken  at  an  unreasonable  hour,  the  time  when  the  instructions  were 
given,  in  order  to  rebut  malice, — Davenport  v.  Ledger,  80  Ills.  574.  And 
it  may  be  shown  that  the  mortgageor  purchased  the  mortgage  in  order 
to  compel  the  mortgageor's  husband  to  pay  a  demand  held  against  him, 
Deal  V.  Osborne,  42  Minn.  102,  43  N.  W.  835.  If  the  goods  are  taken 
from  the  mortgagee  under  a  writ  of  replevin  issued  by  a  senior  mort- 
gagee (the  mortgageor  participating  and  aiding),  the  mortgageor  claim- 
ing that  the  first  seizure  under  the  junior  mortgage  was  without  cause 
and  malicious,  recovers  only  the  difference  betwen  the  market  value 
of  the  goods,  when  taken  by  defendant,  and  when  replevied,  with  any 
losF  to  his  business  or  otherwise,  the  direct  result  of  the  taking.  Where 
the  mortgage  contains  the  insecurity  clause  the  goods  cannot  be  sold 
on  execution  against  the  mortgageor  except  by  consent  of  the  mortgagee, 
Durfee  v.  Grinnell,  69  Ills.  371.  If  the  goods  be  taken  under  a  distress 
warrant  against  the  mortgageor,  mortgages  may  replevy,  McCarthy  v. 
warrant  against  the  mortgagor,  mortgagee  may  replevy,  McCarthy  v. 
Hetzner,  70  Ills.  Ap.  480;  or  if  taken  under  the  levy  of  an  execution, 
Farrell  v.  Hildreth,  38  Barb.  178.  A  junior  mortgage  is  a  violation  of 
a  condition  against  "  any  attempt  to  dispose  of  the  property,"  Deal  v. 
Osborne,  42  Minn.  102,  43  N.  W.  835.  And  a  sale  by  the  mortgageor 
entitles  them  ortgagee  to  immediate  possession.  Buck  v.  Young,  1  Ind. 
Ap.  558,  27  N.  E.  1106.  Plaintiff  purchased  of  defendant  a  stock  of 
goods,  paying  a  portion  of  the  purchase  price  by  a  conveyance  of  land, 
and  executing  for  the  residue  a  note  secured  by  chattel  mortgage  of 
the  goods,  the  note  expressed  to  be  payable  from  the  proceeds  of  sales, 
and  all  such  proceeds  less  the  necessary  expenses,  in  a  limited  sum. 
The  mortgageor  reserved  the  right  to  "  handle  the  goods  in  a  regular, 
legitimate  and  mercantile  way,"  but  provided  also  that  in  case  of  de- 
fault or  the  removal  of  the  goods  contrary  to  the  stipulations  of  the 
mortgage,  "  or  whenever  the  mortgagee  shall  choose,"  he  might  take 
immediate  possession,  etc.  The  latter  clause  was  in  the  printed  form 
upon  which  the  mortgage  was  prepared;  the  former  clause  quoted  was 


CHATTEL     MORTGAGE.  203 

in  writing.  Held  that  the  first  clause  must  prevail  and  that  possession 
assumed  by  the  mortgagee  before  any  default  or  breach  of  condition 
by  the  mortgageor,  was  wrongful,  Sylvester  v.  Ammons,  126  la.  140,  lUx 
N.  "W.  782.  The  mortgage  was  executed  in  June.  It  covered  growing 
crops.  The  debt  matured  in  January  following.  On  the  19th  of 
August  the  mortgagee  brought  replevin  for  two  thousand  bushels  of 
wheat,  part  of  that  described  in  the  mortgage.  It  appeared  that 
the  mortgageor  had  already  sold  five  hundred  bushels  of  the  mortgaged 
wheat.  The  other  crops  were  of  little  or  no  value,  and  the  mortgagee 
was  insolvent.  Moreover  he  was  threatening  to  continue  selling  the 
wheat.  What  remained  hardly  exceeded  in  value  the  mortgaged  debt. 
By  the  law  of  the  state  a  mortgage  upon  growing  crops  did  not  impart 
notice  to  a  buyer  of  grain  in  open  marlvet.  It  was  held  that  the  mort- 
gagee was  entitled  to  deem  himself  insecure.  Allen  v.  Cerney,  Neb.  94 
N.  W.  151.  Description  and  Character  of  the  Debt. — A  mortgage  which 
fails  to  describe  the  debt  with  particularity,  or  misrepresents  it,  is  open 
to  suspicion;  but  it  will  be  sustained  on  proof  of  fairness,  Wood  v. 
Weimar,  14  Otto.  (104  U.  S.)  786,  26  L.  Ed.  779.  Mortgage  for  a  sum 
of  money,  for  a  large  part  of  wliich  the  mortgagee  is  liable  only  as 
surety  for  another,  is  not  open  to  the  charge  of  fraudulent  exaggera- 
tion.   Sargent  v.  Chapman,  12  Colo.  Ap.  529,  56  Pac.  194. 

Assignment. — The  assignment  of  the  debt  carries  the  security,  Tilden 
V.  Stilson,  49  Neb.  383,  68  N.  W.  478;  First  National  Bank  v.  Ragsdale, 
158  Mo.  668,  59  S.  W.  987;  Wyandotte  Bank  v.  Simpson,  8  Kans.  Ap. 
748,  55  Pac.  347.  The  assignee  may  maintain  replevin  for  the  mort- 
gaged goods,  Houck  V.  Linn,  48  Neb.  228,  C6  N.  W.  1103;  Crocker  v. 
Burns,  13  Colo.  Ap.  54,  56  Pac.  199.  But  in  Perry  County  Bank  v. 
Rankin,  73  Ark.  589,  84  S.  W.  725,  it  was  held  that  while  the  assign- 
ment of  the  debt  carries  the  lien  of  the  mortgage,  it  does  not  invest  the 
assignee  with  the  property  in  the  goods  and  such  assignee  cannot 
maintain  replevin.  The  assignment  of  the  mortgage  debt  passes  all 
interest  of  the  mortgagee  in  the  mortgaged  goods  to  the  assignee, 
the  legal  effect  is  the  same  as  if  the  mortgagee  being  in  possession 
had  sold  and  delivered  the  goods  to  the  assignee,  Satterthwaitc  v. 
Ellis,  129  N.  C.  67.  39  S.  E.  727.  The  assignee  is  not  bound  by  the 
agreements  of  the  mortgagee  of  which  he  has  no  notice.  Id.  Long 
V.  Gorman.  100  Mo.  Ap.  45.  79  S.  W.  180.  The  administrator  of  a 
decedent  cannot  assign  a  mortgage,  given  the  latter  in  his  lifetime  to 
indemnify  him  against  liability  as  surety,  without  leave  of  the  probate 
court,  even  to  the  creditor,  for  whose  demand  the  decedent  became 
surety.  Pierce  v.  Batten.  3  Kans.  Ap.  396,  42  Pac.  924.  An  assignment 
of  the  mortgage  paKKes  a  legal  title,  RuskoII  r.  Walker,  73  Ala.  315; 
but  without  thr'  asKlgnment  of  the  debt  It  confers  no  right,  Hamilton  i-. 
Browning.  94  Ind.  242.  The  assignor  of  the  mortgage,  for  value.  Is 
estopped  by  the  recltatlonH  of  the  asHlgnmt'nl.  May  v.  First  National 
Bank,  Neb.  104  N.  W.  184.  An  assignment  of  a  chattel  mortgage  need 
not  be  recorded.  Kerfoot  v.  The  State  Bank.  14  Okla.  104.  77  Pac.  40. 
An  assignment  of  part  of  the  mortgage  d<bt  Is  a  transfer  pru  tanto  of 


204  THE  LAW  OF  REPLEVIN. 

the  mortgage  senirlty;  the  assignee  may  maintain  a  bill  to  foreclose. 
Penney  r.  Miller.  134  Ala.  r)93,  33  So.  608.  And  where  in  such 
case  the  transfer  is  silent  as  to  the  priority  between  assignor  and 
assignee,  the  assignee  generally  has  the  preference.  Penney  v.  Miller, 
supra.  The  mortgagee  is  bound  to  exercise  good  faith  towards  the  as- 
signee. His  duty  is  to  use  care  to  prevent  waste  and  destruction  of 
the  mortgaged  chattels.  Losses  which  are  occasioned  by  wilful  de- 
fault or  gross  negligence  on  his  part  must  go  in  reduction  of  his  de- 
mand.   Penny  r.  Miller,  sitpra. 

Description  of  the  Goods. — Mortgage  of  the  wheat  grown  upon  a 
certain  quarter  section  will  not  sustain  replevin  for  wheat  raised  upon 
another  quarter  section,  Coman  v.  Thompson,  43  Mich.  389,  5  N.  W. 
452.  "  Our  entire  stock  of  dry-goods,  boots,  shoes,  hats,  clothing,  no- 
tions, and  such  other  goods  as  are  usually  kept  in  a  first  class  country 
store,"  without  any  designation  of  its  whereabouts,  is  not  sufficient, 
Jaffrey  v.  Brown,  29  Fed.  476,  and  see  Everett  v.  Brown,  64  Iowa,  420, 
20  N.  W.  743;  Ivins  v.  Hines,  45  Iowa.  73.  "Twenty-five  cattle,  ten 
cows,  seven  steers  and  eight  heifers  now  in  my  possession,"  there  being 
forty  or  more  head  in  the  possession  of  the  mortgagor  at  the  same  time 
answering  the  same  description,  and  no  separation  or  identification 
being  made,  is  void  for  this  uncertainty.  Union  Bank  v.  Hutton,  61 
Neb.  571,  85  N.  W.  535.  A  mortgage  of  600  head  of  ewes,  described  as 
branded  with  a  certain  brand,  and  as  situated  upon  a  particular  ranch 
named,  will  not  warrant  a  recovery  where  it  appears  that  there  were 
other  ewes  of  the  same  brand  upon  the  same  ranch  at  the  same  time, 
there  being  nothing  to  distinguish  them.  Perry  Company  v.  Barto,  3 
Neb.  Unof.  654,  92  N.  W.  762,  First  National  Bank  v.  Hughes,  3 
Neb.  Unof.  823,  92  N.  W.  986.  But  see  Avery  v.  Popper,  post.  Mortgage 
of  a  specific  number  of  cattle,  oxen  and  horses,  without  other  descrip- 
tion, is  void,  even  though  it  appear  that  at  the  date  of  the  mortgage 
mortgageor  owned  the  exact  number  of  animals  set  down  and  owned  no 
others  of  that  description,  Kelly  v.  Reid,  57  Miss.  89;  Contra,  the 
mortgage  reciting  possession  in  mortgageor,  Peters  v.  Parsons,  18  Neb. 
19L  24  N.  W.  687.  "  One  bay  mare,"  held  not  sufficient,  Cowden  v. 
Lockridge,  60  Miss.  385;  nor  "  twelve  acres  of  cotton,"  Hampton  v.  State 
Geo.  52  S.  E.  19.  But  the  description  need  not  be  so  definite  as  to 
permit  identification  without  inquiry,  Buck  v.  Young,  1  Ind.  Ap.  558, 
27  N.  E.  1106;  "one  bay  horse,"  giving  his  name,  color  and  age,  "one 
single  seated  buggy,"  "  one  single  harness,  all  in  my  possession,"  the 
mortgage  showing  the  county  of  mortgageor's  residence,  is  sufficient, — 
Brock  V.  Barr,  70  la.  399,  30  N.  W.  652,  Colean  Co.  v.  Strong,  126  la. 
598,  102  N.  W.  506.    Jordan  v.  Hamilton  Bank,  11  Neb.  499,  9  N.  W.  654. 

"  Five  freight  wagons  and  twenty-five  yoke  of  cattle,  the  team  now  in 
my  possession,"  is  sufficient.  Smith  v.  McLean,  24  la.  322.  Mortgage  of 
500  bushels  of  wheat  in  a  granary  specified,  is  not  invalidated  by  the 
fact  that  the  granary  contains  a  larger  quantity,  and  the  particular 
wheat  mortgaged  is  not  ascertained  and  set  apart,  Burton  v.  Cochran,  5 
Kans.  Ap.  508,  47  Pac.  569;   the  undivided  two-thirds  of  forty  acres  of 


CHATTEL     MORTGAGE.  205 

growing  wheat  "  on  the  John  Wise  farm.  Oilman  Creek,  Morris  County," 
is  sufficient,  Simms  i'.  Mead,  29  Kans.  124.  Mortgage  of  "  three  bales  of 
cotton,  500  pounds  each,  to  be  raised  by  me  the  present  year,"  upon  a 
plantation  described,  conveys  a  mere  equity;  but  if  the  whole  crop  ex- 
cept three  bales,  or  enough  to  make  three  bales,  has  been  removed  by  the 
mortgageor.  the  mortgagee  may  treat  this  as  a  partition  and  replevy 
what  remains,  Washington  r.  love.  34  Ark.  93.  A  mortgage  of  animals 
by  color,  se.x  and  name,  is  sufficient;  otherwise  where  the  chattels  are  de- 
scribed as  "one  four-horse  iron  axle  wagon  "  without  other  specification, 
Nicholson  v.  Karpe,  58  Miss.  34.  Pajt  of  the  description  being  incon- 
sistent with  the  fact,  public  and  notorious,  may  be  rejected  as  surplus- 
age, and  a  mortgage  so  reformed  describing  certain  animals  as  to  be 
"  kept  and  fed  on  the  Brecheisen  farm,  to-wit,  Southeast  quarter 
section  thirty-four,  town  sixteen,  range  sixteen,"  is  sufficient.  Central 
Bank  v.  Brecheisen,  65  Kans.  807,  70  Pac.  895.  "  120  head  of  feeding 
cattle  now  on  feed  in  Audrain  County,"  is  sufficient,  until  it  is  shown 
that  at  the  date  of  the  mortgage  the  mortgagor  had  other  120  head 
answering  this  description,  and  that  the  latter  was  the  lot  mortgaged. 
First  National  Bank  v.  Ragsdale,  158  Mo.  6G8,  59  S.  W.  987.  "  All  our 
right  in  the  personal  estate  of  Adolph  Buecker,  deceased,  with  all* 
claims  to  which  we  are  entitled  as  heirs,  etc.,"  is  sufficient,  Boeger  i». 
Langenberg,  42  Mo.  Ap.  7.  Parol  evidence  is  admissible  to  aid  the  de- 
scription. Id.;  but  where  the  article  is  perfectly  well  known  by  the 
name  used,  parol  is  not  admissible  to  show  that  a  diiterent  article 
never  known  by  that  name  was  intended.  Standard  Company  v. 
Schloss,  43  Mo.  Ap.  304.  Defendant  promised  to  mortgage  to  plaintiff  a 
bale  of  cotton,  which,  as  he  said,  a  tenant  "  will  owe  me  "  at  the  end 
of  the  year;  held  ineffectual  to  encumber  any  particular  cotton  or  en- 
title the  plaintiff  to  replevy  one  bale  of  cotton,  the  tenant  having  pos- 
session of  other  cotton,  Moore  v.  Brady.  125  N.  C.  35,  34  S.  E.  72. 
Mortgage  described  the  animal  as  "  one  sorrel  gelding  with  hind  hoofs 
and  bald  face,  sixteen  and  a  half  hands  high,  twelve  years  old,  worth 
eighty  dollars";  the  complaint  used  the  same  description  except  the 
word  "white"  was  written  in  lieu  of  "with";  held,  there  was  no  ma- 
terial variance.  Buck  v.  Young,  1  Ind.  Ap.  558,  27  N.  E.  1106.  Variances 
in  the  description,  where  the  identity  of  the  property  is  nevertheless 
certain,  do  not  deprive  the  mortgage  of  effect,  Id.  Where  the  descrip- 
tion is  general,  it  may  be  aided  by  averment  and  proof  that  the  attach- 
ing creditor  knew  that  the  goods  levied  upon  were  the  same  goods  in- 
tended to  be  mortgaged,  Starr  v.  Cox.  9  Kans.  Ap.  882.  57  Pac.  247. 
Mortgage  of  a  specifled  number  of  animals,  the  mortgageor  being  pos- 
seB.sed  of  a  larger  number  of  the  same  description  and  there  being  no 
Identification  of  the  particular  animals,  confers  on  the  mortgagee  l)y 
Implication  the  power  to  elect  aH  to  what  animals  he  will  take.  Avery  v. 
Popper,  Tex.  Civ.  Ap.  45  S.  W.  951;  the  election  may  be  exorcised  by 
a  Hult  to  foreclose  the  mortgage  and  the  sequestration  of  particular 
animals.  Id.    The  mortgage  1h  not  Imimlrcd  by  the  fact  that  In  exccut- 


200  THE    LAW    OF    REPLEVIN. 

Ing  it  the  mortgageor  had  no  definite  tattle  in  mind,  nor  that  the  de- 
scription was  inaccurate  and  was  not  intended  for  any  particuhir  cat- 
tle, nor  that  the  mortgagee  was  not  intending  to  mortgage  the  particu- 
lar cattle  seized  under  the  writ.  First  National  Banli  v.  Ragsdale.  171 
Mo.  ItuS.  71  S.  W.  178.  '•  One  open  buggy  with  thills,  new.  made  by  Tay- 
lor Bros.,  Emmettsburg,  and  bought  of  them,  and  one  sulky  new,  made 
by  Taylor  Hros..  Emmettsburg."  is  void  for  uncertainty  as  against  one 
without  actual  notice.  Ormsby  v.  Nolan,  CO  la.  l."?!),  28  N.  W.  569;  and 
extrinsic  evidence  was  held  not  admissible  to  identify  the  mortgaged 
goods,  inasmuch  as  the  mortgage  fails  to  suggest  an  inquiry  which  may 
result  in  identification,  Id.  A  mortgage  showing  that  the  mortgageor 
resides  in  H.  County,  that  the  goods  are  "  now  in  my  possession,"  and 
providing  a.gainst  the  removal  of  the  goods  "  from  said  U.  County  "  is 
sufficient,  and  the  record  affords  constructive  notice.  Wells  v.  Wilcox,  G8 
La.  708,  28  N.  W.  29,  Brock  v.  Barr.  70  la.  399,  30  N.  W.  652. 

Inconsistencies  in  a  portion  of  the  description  do  not  invalidate  the 
mortgage  where  enough  remains,  taken  with  all  the  circumstances,  to 
put  a  subsequent  purchaser  upon  inquiry,  Kerfoot  v.  The  State  Bank. 
14  Okla.  104.  77  Pac.  46.  And  especially  as  to  one  having  actual  knowl- 
edge of  the  identity  of  the  mortgaged  goods.  Longerbeam  v.  Huston,  S. 
D.  105  N.  W.  743. 

Description  of  cattle  by  reference  to  their  ages,  brands  and  the  place 
where  they  are  to  be  found  is  sufficient.  Scalelng  v.  First  National 
Bank,  Tex.  Civ.  Ap.  87  S.  W.  715.  A  mortgage  of  "  279  head  of  cattle,  to- 
wit,— 160  cows  of  various  colors  from  five  to  nine  years  old;  85  young 
steers  and  heifers;  30  steers,  two  and  three  years  old,  various  colors; 
one  hundred  calves,  various  colors;  four  Durham  bulls,"  and  authoriz- 
ing the  mortgagee  to  take  possession  in  case  of  any  attempt  to  remove 
them  from  "  said  Creek  nation,"  held  sufficient.  Kaase  v.  Johnson,  Ind. 
T..  82  S.  W.  680.  Mortgage  of  "  My  two-thirds  of  the  cotton  and  three- 
fourths  of  the  corn  raised  by  me  on  the  farm  of  Thomas  Fulcher  in  the 
county  of  G.,  state  of,  etc.,  about  five  miles  northeast  of  Kingsbury,  and 
one-half  mile  east  of  the  San  Marcos  store"  is  sufficient  to  carry  a 
crop  growing  at  the  time  of  Its  execution.  Becker  v.  Bowen.  Tex.  Civ. 
Ap.  79  S.  W.  45.  "  All  my  crop  of  corn,  cotton,  and  all  other  produce  I 
may  raise,  during  the  year  1891."  supplemented  by  proof  that  the  mort- 
gageor owned  a  tract  of  land  at  the  time  of  the  execution  of  the  mort- 
gage, situate  in  the  county  where  the  mortgage  was  executed,  is  suffi- 
cient to  carry  the  cotton  and  corn  grown  on  that  land  during  the  year 
named.  The  record  of  such  mortgage  affects  subsequent  purchasers. 
Woods  v.  Ro?e,  135  Ala.  297,  33  So.  41.  A  chattel  mortgage  executed  by 
two  upon  "all  crops  cultivated  by  us  this  year"  on  lands  described, 
does  not  pass  a  crop  cultivated  and  reared  by  one  of  the  two,  acting  for 
himself.     Furgerson  v.  Twisdale,  137  N.  C.  414,  49  S.  E.  914. 

The  maxim  false  demonstratio  non  nocet  applies  to  a  chatt?!  mort- 
gage as  to  other  writings.  National  Bank  v.  Schufelt,  Ind.  T.,  82  S. 
W.  927. — The  place  where  the  chattels  are  located,  if  given  in  the 
mortgage,  is  to  receive  the  same  effect  as  any  other  part  of  the  de- 


CHATTEL     MORTGAGE.  207 

scription;  so  where  two  chattel  mortgages  of  cattle  were  executed, 
the  cattle  being  branded  with  the  same  brand,  and  located  upon  differ- 
ent ranches,  specifically  described  in  the  mortgages,  the  cattle  were 
afterwards  turned  upon  the  range,  and  became  confused;  and  the 
assignee  of  the  first  mortgage  brought  replevin  for  certain  cattle  in 
possession  of  the  assignee  of  the  second  mortgage,  it  was  held  that 
plaintiff  must  identify  the  cattle  demanded  with  those  which,  at  the 
date  of  his  mortgage,  were  upon  the  range  described  therein.  Na- 
tional Bank  v.  Schufelt,  sitpfa.  A  mortgage  of  cattle  describing  them 
truthfully  as  to  breed,  age,  color  and  location  is  not  impaired  by  the 
fact  that  they  are  termed  "  Steers,"  when  in  the  trade  they  were  desig- 
nated as  "  Stags."  Sedalia  Bank  v.  Casiday  Co.,  Mo.  Ap.  84  S.  W.  142. 
Mis-description  of  the  cattle  as  to  location,  the  other  particulars  set 
down  amply  identifying  them,  will  not  vitiate  the  mortgage.  ToOtle 
V.  Buckingham,  190  Mo.  1S3,  88  S.  W.  619. 

Where  it  clearly  appears  that  the  animals  in  controversy  are  the 
same  mortgaged,  slight  variations  from  the  true  description  are  im- 
material. Saenz  v.  Mumme,  Tex.  Civ.  Ap.  85  S.  W.  59.  Change  in  de- 
scription.— The  lien  of  a  chattel  mortgage  duly  recorded  and  which  de- 
scribes a  horse  by  its  color,  is  not  lost  by  the  natural  or  unnatural 
change  in  the  color,  even  though  the  new  coat  in  no  manner  resembles 
the  original.  The  mortgage  binds  even  one  who  purchased  without 
actual  notice  of  the  mortgage,  and  after  the  mutation  in  color.  Turpin 
r.  Cunningham,  127  X.  C.  508,  37  S.  E.  453,  51  L.  R.  A.  800.  So  where 
by  natural  growth  a  calf  mortgaged  becomes  a  cow,  or  by  castration  a 
boar  is  made  a  barrow.  Id. 

Mortgagee's  Right  to  Possession. — If  the  goods  are  sold  on  execution 
against  the  mortgageor,  mortgagee  may  recover  them  from  the  pur- 
chaser, Peckinbaugh  v.  Quillin,  12  Neb.  586,  12  N.  W.  104;  Pike  v. 
Colvin,  67  Ills.  227.  The  legal  title  passes  to  the  mortgagee  and  upon 
default  he  is  entitled  to  possession  without  foreclosure,  Kellogg  v. 
Olsen,  34  Minn.  105.  24  N.  W.  364.  If  any  part  of  the  mortgage  debt  Is 
unpaid  the  mortgagee  upon  default  is  entitled  to  possession  of  the  mort- 
gaged chattels,  Burns  v.  Campbell,  71  Ala.  271,  Griffith  r.  Richmond, 
126  N.  C.  377,  ?J,  S.  E.  620.  The  mortgagee  is  entitled  to  possession 
from  the  date  of  the  mortgage,  Satterthwaite  v.  Ellis,  129  N.  C.  67,  39 
S.  E.  727.  If  default  be  made  in  any  part  of  the  debt  mortgagee  is  en- 
titled to  possession  if  the  mortgage  so  provide,  Gilbert  v.  Murray,  6& 
Ills.  Ap.  664;  and  so  for  default  in  interest,  Flinn  v.  Ferry,  127  Calif. 
648,  60  Pac.  434.  The  assignee  of  the  mortgage  has  the  same  right.  Id.; 
he  is  not  affected  by  agreements  of  the  mortgagee  of  which  he  has  no 
notice,  Satterthwaite  r.  Ellis,  129  N.  C.  67.  36  S.  E.  727:— and  the  mort- 
gagee may  after  default  jjcacoably  enter  the  mortgageor's  premises  to 
seize  the  goods,  Hums  r.  Campbell,  71  Ala.  271.  Part  payment  of  the 
debt  In  no  plea.  IIudKon  v.  Snipes.  40  Ark.  75;  but  payment  in  full  Is  ii 
bar,  Id.  Mortgagee  Is  entitled  to  retain  posBcsslon  as  against  all  who 
claim  under  the  mortgageor,  In  order  to  forodoHe  his  lien,  Esshom  v. 
"SVatertown  Co.,  7  8.  D.  74,  63  N.  W.  229;  e.  y..  a  receiver  of  mortgageor's 


208  THE    LAW    OF    REPLEVIN. 

estate.  Hammond  v.  Solliday,  8  Colo.  610,  9  Pac.  781.  Mortgagor  will 
not  be  allowed  to  recover  a  portion  of  the  goods  on  plea  of  excess  iu 
the  security.  Dreyfus  v.  Cage,  62  Miss.  733;  but  where  the  mortgage 
provides  that  the  goods  shall  remain  in  mortgageor's  possession  until  de- 
fault, the  mortgagee,  to  recover  them  before  maturity  of  the  debt,  must 
show  a  breach  of  some  other  condition  of  the  mortgage,  Williams  v. 
Wood.  55  Minn.  323.  56  N.  W.  10G6.  If  the  mortgageor  assume  to  sell 
free  of  the  mortgage,  this  is  a  conversion  and  gives  the  mortgagee  a 
right  of  action,  Heflin  v.  Slay,  78  Ala.  180.  Mortgagee  may  maintain 
replevin  for  a  portion  of  the  goods  and  so  confer  jurisdiction  upon  a 
justice  of  the  peace;  it  is  not  a  splitting  of  the  cause  of  action,  Kiser  v. 
Blanton.  123  N.  C.  400,  31  S.  E.  878.  An  assumption  of  possession  by 
the  mortgagee  pursuant  to  the  terms  of  the  mortgage,  does  not  impair 
its    lien.    Summerville    v.    Stockton    Co.,    142    Calif.    529,    76    Pac.    243. 

In  Washington,  mortgagee  cannot  before  maturity  of  the  debt  re- 
cover possession  of  the  goods  from  one  to  whom  the  mortgageor  has  de- 
livered them,  even  though  the  mortgage  contains  the  usual  clause 
against  removal  and  disposition,  Silsby  v.  Aldridge,  1  Wash.  117,  23 
Pac.  836.  In  Indiana,  the  mortgagee  is  not  entitled  to  possession  un- 
less the  mortgage  so  expressly  provides.  Johnson  v.  Simpson,  77  Ind. 
412.  The  mortgageor  may  replevy  the  goods  after  seizure  by  the  mort- 
gagee, upon  showing  failure  of  consideration,  e.  g.,  that  she  bought 
the  article  from  the  mortgagee  as  new  when  in  fact  it  was  second-hand, 
that  she  had  paid  the  full  value,  that  mortgagee  had  promised  to  re- 
place it  by  a  new  one,  and  had  failed  in  his  promise,  Hennessey  v. 
Barnett,  12  Colo.  Ap.  254.  55  Pac.  197.  And  where  the  plaintiff  claims 
under  a  mortgage  to  secure  advances,  his  account  may  be  scrutinized 
in  an  action  by  the  mortgageor  for  unlawfully  seizing  the  goods,  Burns 
v.  Campbell.  71  Ala.  271.  Mortgagee  instituting  replevin  before  the 
maturity  of  the  debt  must,  if  the  mortgage  provides  that  the  goods 
shall  remain  in  the  possession  of  the  mortgageor  until  maturity,  show 
a  breach  of  some  other  condition,  Kellogg  v.  Anderson,  40  Minn.  207, 
41  N.  W.  1045.  Bailiff  of  mortgagee  who  seizes  the  goods  under  the 
mortgage,  cannot  stipulate  away  the  mortgagee's  rights  in  a  replevin 
suit  brought  against  such  bailiff;  the  court  will  give  judgment  accord- 
ing to  the  interest  of  the  mortgagee  in  spite  of  such  stipulation.  Casper 
r.  Kent  Circuit  Judge,  45  Mich.  251,  7  N.  W.  816. 

Defects  Cured  hy  Possession. — In  Edinger  v.  Grace,  8  Colo.  Ap.  21, 
44  Pac.  855,  it  was  held  that  a  chattel  mortgage  unacknowledged,  is 
invalid  as  to  creditors  of  the  mortgageor,  and  that  the  defect  was  not 
cured  by  the  assumption  of  the  possession  by  mortgagee  before  the 
rights  of  creditors  accrued.  But  Jenney  v.  Jackson,  6  Ills.  Ap.  32,  is 
to  the  contrary;  and  surrender  of  possession  of  its  premises  by  the 
mortgageor  to  the  mortgagee  was  held  sufficient,  though  the  former 
superintendent  of  the  mortgageor  was  retained  in  the  same  capacity, /d. 
And  in  Hardy  v.  Graham,  63  Mo.  Ap.  40,  held,  that  actual  possession 
of  the  mortgagee  cures  all  faults  of  the  mortgage — e.  g.,  defects  in  the 
memorandum  or  record,  Howard  Co.  v.  National  Bank,  93  Ills.  Ap.  473; 


CHATTEL  MORTGAGE.  209 

■ — the  want  of  a  record,  Trimble  v.  Mercantile  Co.,  56  Mo.  Ap.  683,  First 
National  Bank  v.  Barse  Co..  198  Ills.  232,  64  N.  E.  1097;  and  absence  of 
both  acknowledgment  and  record,  Springer  v.  Lipsis,  209  Ills.  261,  70 
N.  E.  641;  and  see  Esshom  v.  Watertown  Co.,  7  S.  D.  74,  63  N.  W.  229. 
Even  though  the  mortgageor  by  consent  of  the  mortgagee  remain  in 
possession  of  a  stock  of  merchandise,  selling  and  converting  the  pro- 
ceeds for  a  considerable  time  after  execution  of  the  mortgage,  yet  if, 
before  any  levy,  the  mortgagee  assumes  possession,  the  mortgage 
becomes  validated  and  no  leviable  interest  remains  in  the  mortgageor, 
Ahlman  v.  Meyer,  19  Neb.  63,  26  N.  W.  584;  such  possession  cures 
all  defects  in  description,  Falk  v.  DeCue,  8  Kans.  Ap.  765,  61  Pac.  760. 
Ottumwa  Bank  v.  Totten,  Mo.,  89  S.  W.  65.  Delivery  to  a  third  per- 
son, for  the  mortgagee,  assented  to  by  the  latter,  is  effectual,  Id.;  so  is 
the  actual  control  of  the  goods  by  the  mortgagee,  though  they  remain  on 
the  premises  of  the  mortgageor.  First  National  Bank  v.  Barse  Co.,  supra. 
Mortgageor's  Right  to  Possessio7i. — Mortgageor  is  entitled  to  posses- 
sion until  forfeiture  of  the  mortgage,  Boeger  v.  Langenberg,  42  Mo. 
Ap.  7;  mortgageor  remains  the  owner  until  condition  broken,  Gotts- 
schalet  v.  Klinger,  33  Mo.  Ap.  410;  Niven  v.  Burke,  82  Ind.  455;  if  mort- 
gagee replevy  before  any  breach  of  the  conditions,  mortgageor  is 
entitled  to  a  return  of  the  goods,  and  in  assessing  the  value  of  his 
interest  the  mortgage  debt  is  not  to  be  deducted,  Manker  v.  Sine,  35 
Neb.  746,  53  N.  W.  734;  if  the  mortgagee  has  lawful  possession  the 
mortgageor  has  no  remedy  except  by  bill  in  equity  to  redeem,  Holz- 
hausen  v.  Parkhill,  85  Wis.  446,  55  N.  W.  892. 

Mortgageor's  Interest  Leviahle. — A  mere  equity  of  redemption  or 
permissive  possession  in  the  mortgageor  is  not  the  subject  of  levy  ex- 
cept by  virtue  of  statute,  Peckinbaugh  v.  Quillin,  12  Neb.  587,  12  N.  "W. 
104;  contra,  Heflin  v.  Slay,  78  Ala.  181;  McMillan  v.  Larned,  41  Mich, 
521,  2  N.  W.  662;  Udell  v.  Slocum,  56  Ills.  Ap.  216.  A  levy  after  the 
mortgageor  has  sold  his  interest,  is  void,  Ashcroft  v.  Simmons,  159  Mass. 
203,  34  N.  E.  188.  If,  after  levy,  the  mortgage  matures,  the  officer's 
right  is  at  an  end  and  the  mortgagee  may  replevy,  Ament  t'.  Greer,  37 
Kans.  648,  16  Pac.  102.  The  sheriff  may  levy  upon  mortgaged  goods 
and  take  possession  for  the  purpose  of  an  inventory;  but  if  he  levies 
in  disregard  of  the  mortgage  and  not  subject  to  it,  replevin  lies  by  the 
mortgagee,  without  demand,  Merrill  v.  Denton,  73  Mich.  628,  41  N.  W. 
823.  In  Indiana,  only  the  equity  of  redpmi)tion  In  the  mortgageor  can 
be  Bold.  Consolidated  Tank  Line  Co.  r.  Hronson.  2  Ind.  Ap.  1,  28  N.  E. 
155.  Mortgagee  cannot  even  after  maturity  of  the  debt  and  default 
made,  maintain  replevin  against  an  officer  who  has  levied  upon  the 
goods,  Olds  V.  Andrews,  06  Ind.  147;  Mortgageor  In  possession  has, 
until  condition  broken,  a  leviable  Interest,  Schweitzer  v.  Hanna,  91 
WIh.  318,  64  N.  W.  997.  Where  the  mortgage  contains  no  Insecurity 
clause  the  mortgagee's  Interest  Is  leviable,  but  upon  maturity  of 
the  debt,  before  sale  under  execution  the  mortg;iget'  iiiiiy  demand 
the  goodH  of  the  officer  and  maintain  reidcvin,  Sinnnons  t".  .Icniklns, 
76  IIIk.  479.  The  officer  Ih  not  guilty  of  u  treBpuHs  In  making  the  levy, 
14 


210  THE    LAW    OK    REPLEVIN. 

Id.  An  officer  justifying  under  a  void  execution  cannot  assail  th& 
validity  of  a  chattel  mortgage  valid  as  between  mortgageor  and  mort- 
gagep,   Cummins  v.   Holmes,   109   Ills.   15. 

Helcasc  or  'Waiver  of  the  Lien. — Mortgagee  by  consenting  to  thi-. 
levy  of  an  execution  upon  a  portion  of  the  mortgaged  goods  does  not 
waive  his  lien  on  the  residue,  Woolner  v.  Levy.  48  Mo.  Ap.  4(i9.  Con- 
sent to  the  sale  by  mortgageor  of  a  portion  of  the  mortgaged  chattels 
waives  the  condition  of  the  mortgage  prohibiting  such  sale,  so  far  as 
relates  to  the  particular  articles  sold,  Dixon  v.  Atkinson,  80  Mo.  Ap. 
24.  Mortgagee  may  even  after  taking  possession,  surrender  his  right 
to  the  mortgageor  by  parol  and  without  consideration.  Stone  v.  Jenks, 
142  Mass.  519,  8  N.  E.  403;  may  assent  to  a  sale  by  the  mortgageor 
in  good  faith,  without  losing  the  lien;  the  case  is  not  within  the 
doctrine  that  the  mortgage  is  void  where  the  mortgageor  remains  in 
possession,  selling  in  the  ordinary  course  of  trade,  Houck  v.  Linn, 
48  Neb.  227,  66  N.  W.  1103.  Taking  possession  and  storing  the  goods 
in  accordance  with  the  terms  of  the  mortgage,  is  not  a  waiver  of 
the  lien,  Summerville  v.  Stockton  Co.,  142  Calif.  529,  76  Pac.  243.  Per- 
mitting the  plaintiff  to  pile  upon  defendant's  mill-yard  the  lumber 
in  controversy,  in  separate  piles  for  its  better  curing  and  season- 
ing, is  not  a  surrender  of  the  possession  or  a  waiver  of  the  lien.  Holder- 
man  r.  Manier,  104  Ind.  118.  The  right  of  the  mortgagee  to  possession 
is  not  lost  by  irregularities  in  the  sale,  Tackaberry  v.  Gilmore,  57 
Neb.  450,  78  N.  W.  32;  Kelsey  v.  Ming,  118  Mich.  438,  76  N.  W.  981; 
Pope  V.  Jenkins,  30  Mo.  528;  Saunders  v.  Closs,  117  Mich.  130,  75  N.  W. 
295.  An  agreement  between  mortgageor  and  mortgagee,  waiving  the 
statutory  notice  of  sale  cannot  be  questioned  by  a  creditor  who  then 
had  no  lien,  Tackaberry  v.  Gilmore,  supra.  An  intention  by  the  mort- 
gagee to  remove  the  mortgaged  goods  to  another  county,  does  not 
impair  his  right  to  maintain  replevin,  though  the  statute  requires 
that  mortgaged  chattels  shall  be  sold  where  the  mortgageor  resides 
or  where  the  goods  are  situated  when  mortgaged,  Howard  Co.  v.  Na- 
tional Bank,  93  His.  Ap.  473.  Agreement  between  mortgagee  of  tenant's 
interest  in  the  crop,  and  the  landlord  having  a  lien  thereon,  that  the 
landlord  shall  purchase  the  tenant's  interest,  harvest  and  sell  the 
crop,  taking  the  expense  from  the  tenant's  share  and  paying  the 
residue  to  the  mortgagee,  is  a  valid  agreement  and  not  in  contraven- 
tion of  a  statute  prohibiting  the  sale  of  mortgaged  chattels  to  any 
person  without  consent  of  the  mortgagee,  Richey  v.  Ford,  84  His.  Ap. 
121.  Replevy  of  goods  attached  and  sale  of  a  portion  of  them  to  satisfy 
the  attacher's  claim,  the  residue  being  returned  to  the  sheriff,  does 
not  disturb  the  lien  of  the  attachment.  Pace  v.  Neal,  92  Ills.  Ap.  416. 
Payment  of  a  note  given  by  a  third  person  as  collateral  to  the  mort- 
gaged debt,  which  was  thereupon  transferred  to  the  party  making 
the  payment,  does  not  discharge  the  mortgage.  Park  v.  Robinson,  15 
S.  D.  557,  91  N.  W.  344;  but  the  lien  is  discharged  by  a  tender  of  the 
amount  due,  Jones  v.  Rahilly,  16  Minn.  320.  Surety  in  replevin  bond, 
held  a  chattel  mortgage  upon  the  goods.    After  judgment  of  retorno,  he 


CHATTEL     MORTGAGE.  211 

seized  the  goods  under  his  chattel  mortgage  and  delivered  them  to 
the  defendant  in  satisfaction  of  the  judgment.  Held,  he  thereby 
waived  his  chattel  mortgage,  and  could  not  recover  the  goods  in  an- 
other replevin,  claiming  under  the  mortgage.  Rich  v.  Savage,  12  Neb. 
413,  11  N.  W.  863.  The  mortgagee  waives  his  lien  by  levying  an  attach- 
ment upon  the  mortgaged  chattels.  Evans  v.  Warren,  122  Mass.  303. 
See  contra  Byran  v.  Stout,  127  Ind.  195,  26  N.  E.  687;  Barchard  v. 
Kohn,  157  111.  579,  41  N.  E.  902;  First  National  Bank  v.  Johnson,  Neb. 
94  N.  W.  837.  Not  by  consent  to  a  sale  of  the  mortgaged  goods,  subject 
to  the  mortgage.  Fields  v.  Jobson  Company,  109  Mo.  Ap.  84,  81  S.  W. 
636. 

Payment. — Payment  of  the  mortgage  debt  reinvests  mortgagor  with 
the  property  in  the  goods,  even  though  made  after  breach  of  the  con- 
ditions. Summer  v.  Kelly,  38  S.  C  507,  17  S.  E.  364.  The  proceeds 
of  the  mortgaged  chattels  must  be  applied  to  the  mortgage  debt,  Id. 
If  the  debt  has  been  paid  the  mortgagee  cannot  lawfully  intermeddle 
with  the  goods.  Hase  r.  Schotte,  109  Mo.  Ap.  458,  84  S.  W.  1014;  can- 
not recover  the  goods  though  the  attorney  through  whom  he  acted 
converted  the  money  and  forged  the  client's  name  to  a  release  of  the 
mortgage,  Dentzel  v.  City  &  Suburban  Co.,  90  Md.  434,  45  Atl.  201. 
Payments  exacted  in  excess  of  the  lawful  rate  of  interest  under  claim 
of  brokerage  or  commissions  for  indulgence  will  be  treated  as  a  pay- 
ment upon  the  debt,  Nunn  r.  Bird,  36  Ore.  515,  59  Pac.  808.  And 
defendant  may  show  that  the  mortgage  was  given  in  substitution 
for  a  former  mortgage,  expressed  to  bear  only  the  lawful  rate  of 
interest,  and  that  mortgagee  had  upon  such  pretense  of  commissions 
for  indulgence  exacted  usury  to  an  amount  in  excess  of  the  principal 
and  lawful  interest  due  upon  the  debt,  Id. 

Bankruptcy  of  the  Mortgagor. — A  mortgage  executed  more  than  four 
months  before  bankruptcy  is  not  voidable  merely  because  not  recorded 
until  within  the  four  months.  First  National  Bank  v.  .Johnson,  Neb. 
94  N.  W.  837.  The  question  whether  a  recordable  instrument,  e.  g., 
a  chattel  mortgage,  constitutes  a  preference  within  the  meaning  of 
the  bankruptcy  act  is  to  be  determined  by  the  state  of  facts  existing 
at  the  time  of  its  execution,  and  not  at  the  time  of  the  record;  if  not 
really  a  preference  but  given  upon  a  new  and  adequate  consideration 
a  failure  to  record  it  until  the  maker  becomes  insolvent  does  not 
cause  it  to  become  a  preference.    Soager  v.  Lamm,  Minn.,  104  N.  W.  1. 

A  mortgage  of  part  of  a  mass  or  greater  quantity  without  separa- 
tion or  idf-ntifiration.  creates  no  lien;  and  if  no  Idcntifiration  o. 
separation  ofcur  until  within  four  months  of  the  bankruptcy,  the  mort- 
gage iH  an  unlawful  preference.  First  National  Hank  v.  Johnson,  supra. 
The  bankruptcy  of  the  mortgagor  does  not  Invalidate  the  mortgage, 
nor  Impair  the  mortgageor's  right.  Taylor  v.  Springfield  Company.  18o 
Ma«8.  3.  61  N.  E.  217. 

But  It  JH  held  that  if  tho  mortgagee  in  a  mortgage  exec  iid-d  by  one 
who  Hubsequpnlly  and  withiii  four  months  bccomf-H  a  bankrupt,  to  s<- 
cure    an    existing    ludebledniHH,    after    notice    of    the    mortgageor's    in- 


i:i2  THE    LAW    OF    KEI'LEVIN. 

solvency  causes  the  property  to  be  sold  by  the  mortgageor  before  his 
hankruptcy.  and  appropriates  the  proceeds,  he  is  liable  to  the  trustee  in 
bankruptcy.     Jackman  v.  Eau  Claire  Bank,  Wis.  104  N.  W.  98. 

Foj-cclosure  Pending  Replevin. — Mortgagee  securing  possession  by 
replevin  may,  while  the  replevin  is  still  pending,  foreclose  his  mort- 
gage and  confer  a  good  title  upon  the  purchaser,  as  against  an  in- 
ferior lien  claimant;  and  it  seems  it  is  his  duty  to  do  so  and  proceed 
with  diligence.  Union  National  Bank  v.  Moline  Co.,  7  N.  D.  201,  73 
N.  W.  527,  Lewis  v.  D'Arcy,  71  Ills.  648;  he  is  accountable  to  his 
adversary  for  the  value  of  the  goods  from  the  time  when  taken,  with 
Interest,  if  by  delaying  to  foreclose  his  mortgage  the  property  is 
lost.  Id.  He  must  so  proceed  as  to  make  the  greatest  amount  reason- 
ably possible  from  the  security,  so  that  the  burden  of  his  particular 
mortgage  may  be  lessened.  Id. 

Siale  under  the  Pnxcer. — In  Bordeaux  v.  Hartman  Company, 
I\Io.  Ap.  91  S.  W.  1020,  the  mortgagee  for  default  in  the  condi- 
tion of  the  mortgage  assumed  possession  of  the  goods.  The  conduct 
of  its  agents  was  in  every  respect  lawful  and  considerate.  No  threats 
or  rude  language  were  indulged  in;  yet  because  the  mortgageor,  a  nerv- 
ous woman,  lost  her  reason  by  occasion  of  this  misfortune,  it  was  held 
that  the  husband  might  maintain  an  action  against  the  mortgagee.  The 
mortgagee  seizing  the  mortgaged  chattels  under  a  power  of  sale  in 
the  mortgage  must  do  so  in  a  peaceable  manner.  He  is  authorized 
to  enter  the  mortgageor's  premises.  Bordeau.x  v.  Hartman  Company, 
Mo.  Ap.  91  S.  W.  1020.  The  power  is  irrevocable.  Id.  The  mort- 
gagee must  exercise  the  utmost  good  faith;  he  may  not  sacrifice 
the  property  for  less  than  a  reasonable  valuation,  and  if  he  do  so 
he  is  liable  to  the  mortgageor.  Johnson  v.  Selden,  140  Ala.  418,  37  So. 
249.  Kellogg  v.  Malick,  Wis.  103  N.  W.  1116.  The  mortgageor  sold 
twenty-eight  head  of  cattle  in  one  lot  and  seventy-seven  head  of  cattle 
and  one  horse  in  another  lot.  The  total  sales  amounted  to  thirteen 
hundred  dollars.  The  property  was  worth  over  seventeen  hundred 
dollars.  The  mortgageors  requested  that  they  should  be  sold  in  small 
lots  and  several  persons  were  present  desiring  to  buy  in  small  lots 
but  not  the  whole  herd.  Held,  that  the  sale  was  unfair  and  the 
defendant  having  purchased  the  property  was  bound  to  account  for 
its  value.  Kellogg  v.  Malick,  supra.  The  sale  of  many  items  in  one 
lot  is  prima  facie  unfair.  Johnson  v.  Selden,  supra.  The  sureties 
in  a  promissory  note  are  not  authorized  to  assume  possession  of 
goods  mortgaged  to  secure  the  promissory  note.  Only  the  mortgagee 
can  exercise  those  powers.  Mardis  v.  Sims,  140  Ala.  388,  37  So.  243. 
The  proof  of  posting  of  a  notice  of  sale  of  chattels  under  a  mortgage 
stated  that  the  same  was  posted  "  at  or  near  "  a  house  named.  Held, 
too  indefinite,  and  that  the  sale  under  such  notice  was  irregular  and 
without  effect  as  to  a  junior  mortgagee.  Powell  v.  Hardy,  Minn.  94 
N.  W.  682.  But  a  creditor  will  not  be  permitted  to  question,  upon 
the  ground  of  a  defect  in  the  notice,  a  sale  to  which  the  mortgageor 
has  consented.     Wasserman  v.  McDonnell,  Mass.   76  N.  E.  959. 


CHATTEL     .MORTGAGE.  213 

Mortgage  of  Wife's  Separate  Property. — Where  the  mortgage  is  exe- 
cuted by  both  husband  and  wife  it  creates  a  lien  upon  the  chattels  de- 
scribed, whether  it  be  community  property  or  the  separate  property  of 
the  wife,  Avery  v.  Popper,  Tex.  Civ.  Ap.  45  S.  W.  951. 

Conditional  Sale. — A  condition  that  the  title  to  chattels  shall  re- 
main in  the  vendor  until  payment,  is  valid  in  many  of  the  states, 
even  as  against  a  bona  fide  purchaser  of  the  vendee  to  whom  posses- 
sion has  been  delivered,  Harkness  i-.  Russell.  118  U.  S.  663,  30  L.  Ed. 
285;  Couse  v.  Tregent,  11  Mich.  65;  Ross-Meehan  Co.  v.  Pascagoula 
Co..  72  Miss.  608,  18  So.  364;  Bennett  v.  Tam,  24  Mont.  457,  62  Pac. 
780;  Roof  v.  Chattanooga  Co.,  36  Fla.  284,  18  So.  597;  Payne  v.  June, 
92  Ind.  252;  Cottrell  v.  Carter,  173  Mass.  155,  53  N.  E.  375;  Wall  v. 
De  Mitkiewicz.  9  Ap.  D.  C.  109;  Fischer  v.  Cohen,  48  N.  Y.  Sup.  775; 
Wangler  v.  Franklin,  70  Mo.  659;  Hodson  v.  Warner,  60  Ind.  214; 
Rice  V.  Crow,  6  Heisk,  28.  Any  writing,  however  informal,  expressing 
the  purpose  to  part  with  the  property  only  on  payment  of  the  price 
is  a  conditional  sale.  Smith  v.  Aldrich,  180  Mass.  367,  62  N.  E.  381; 
Plymouth  Company  v.  Fee,  182  Mass.  31,  64  N.  E.  419.  But  an  agree- 
ment between  vendor  and  vendee  of  chattels  that  they  shall  not  be 
sold  by  the  vendee  until  paid  for,  is  not  equivalent  to  a  reservation 
of  the  title.  Neal  v.  Cone,  Ark.  88  S.  W.  952.  Upon  an  order  for  goods, 
prepared  upon  a  blank  form,  used  by  a  manufacturer  both  for  making 
sales  and  for  constituting  agencies,  was  an  endorsement,  expressing 
a  reservation  of  the  title  of  goods  manufactured,  etc.,  until  payment 
should  be  made.  This  was  however  under  the  title  or  caption  "  Agency 
Contract."  The  face  of  the  contract  imported  an  absolute  sale,  and 
that  buyer  should  be  at  liberty  to  sell  again.  Held,  that  the  endorse- 
ment did  not  work  a  reservation  of  the  title.  Oliver  Plow  Works  v. 
Dolan,  Mich.  103  N.  W.  186. 

A  conditional  sale  is  not  a  chattel  mortgage.  Neither  acknowledg- 
ment nor  record  is  necessary,  Goodgame  v.  Sanders,  140  Ala.  247,  37 
So.  200;  Bronson  v.  Russell.  Ala.  37  So.  672;  Bennett  v.  Tsun,  supra; 
as  against  the  original  purchaser,  even  though  the  statute  provides 
that  "  all  bills  of  sale  .  .  .  for  securing  the  payment  of  moneys  .  .  . 
shall  be  deemed  mortgages."  Campbell  Co.  v.  Walker.  22  Fla.  412; 
Slnrlair  v.  Wheeler.  69  N.  H.  538,  45  At!.  1085;— but  whether  as  against 
his  subsequent  creditors  and  bona  fide  purchasers  from  him,  Querc, 
Campbell  Co.  v.  Walker,  22  Fla.  412.  And  though  a  i)romlssory  note  was 
given  for  the  goods  the  vendor  may  show  by  parol  that  the  title  was  to 
remain  in  him  until  payment.  Hutchinson  v.  Hutchinson.  102  Mich.  635, 
61  N.  W.  60.  And  such  conditional  sale  may  be  made  by  word  of  mouth. 
Crews  V.  Harlan,  Tex.  87  S.  W.  656.  S.  C.  88  S.  W.  411.  If  the  sale 
be  of  the  timber  standing  upon  certain  lands  vendor  may  recover  the 
lumber  manufactured  from  the  logH  even  from  those  who  i)urchaso 
for  value  and  without  notice.  Lilly  v.  Dunbar,  62  Wis.  198,  22  N.  W. 
467;  Bent  v.  Hoxle.  90  Wis.  625.  64  N.  W.  426;  Hyland  v.  Bohn  Co.. 
02  WlH.   163,  65  N.  W.  369.     The  vendee  takes  no  title  until  payment. 


214  THE    LAW    OF    REPLEVIN. 

Wall  V.  De  Mitklewicz.  9  Ap.  D.  C.  109;  Bennett  r.  Tarn,  supra;  Stevens 
r.  Georgia  Co.,  122  Geo.  317.  His  right  of  possession  depends  upon 
compliance  with  the  terms  of  his  purchase,  Wiggins  i'.  Snow,  89  Mich. 
47»;,  50  N.  W.  991.  If  the  condition  be  that  purchaser  shall  furnish 
approved  security,  the  vendor  is  the  exclusive  judge  of  the  sufficiency 
of  the  security  offered.  Bonham  v.  Hamilton.  66  O.  St.  82,  63  N.  E.  597. 
The  conditional  purchaser  may  ordinarily  sell  his  right;  but  if  he 
assume  to  sell  the  whole  property  this  is  a  conversion,  Partridge  v. 
Philbrick,  60  N.  H.  556.  The  conditions  of  the  sale  bind  those  who 
succeed  to  the  purchaser's  right,  Quinn  v.  Parke  Co.,  5  Wash.  276,  31 
Pac.  8G6.  Chattel  mortgage  by  the  purchaser  does  not  impair  the 
vendor's  right,  Wiggins  v.  Snow,  supia,  1.  And  so  long  as  there  is 
no  default  in  the  conditions  of  the  purchase  the  purchaser  has  a 
leviable  interest,  and  the  seller  cannot,  in  the  absence  of  a  provision 
to  that  effect  in  the  contract,  re-take  the  goods  from  the  officer;  — 
in  case  of  sale  of  the  goods  upon  execution  the  purchaser  upon  complet- 
ing the  payments  takes  the  title,  Savelle  v.  Wauful,  16  N.  Y.  Sup. 
219.  Upon  default  by  the  purchaser  the  seller  may  at  once  maintain 
replevin,  Bancroft-Whitney  Co.  v.  Gowan,  24  Wash.  G6,  63  Pac.  1111; 
Gill  V.  De  Armant.  90  Mich.  425,  51  N.  W.  527;  Webster  v.  Brunswick- 
Balke  Co.,  37  Fla.  433,  20  So.  53G;— even  from  an  officer  who  seizes 
them  under  process  against  the  purchaser,  Forbes  v.  Martin,  7  Houst. 
375.  32  Atl.  327; — or  from  one  to  whom  the  purchaser  has  pledged 
them,  Ferguson  v.  Lauterstein,  160  Pa.  St.  427,  28  Atl.  852;  even 
from  a  purchaser  for  value  without  notice,  Lorain  Co.  v.  Norfolk  Co., 
187  Mass.  500,  73  N.  E.  646;  and  even  though  the  contract  of  sale 
fails  to  stipulate  for  such  action,  Richardson  Co.  v.  Teasdall,  52  Neb. 
698.  72  N.  W.  1028.  W^hoever  succeeds  to  the  vendor's  rights,  e.  g., 
his  trustee  in  bankruptcy,  Gordon  v.  Farrington,  46  Mich.  420,  9 
N.  W.  456;  the  endorsee  of  a  note  secured  by  the  conditional  sale, 
has  the  same  right,  Myres  v.  Yaple,  60  Mich.  339.  27  N.  W.  536;  Wall  v. 
De  Mitkiewicz,  9  Ap.  D.  C.  109;  Ross-Meehan  Co.  v.  Pascagoula  Co., 
72  Miss.  608,  18  So.  364.  In  McPherson  v.  Acme  Co.,  70  Miss.  649, 
12  So.  857,  it  was  held  that  the  vendor  might  replevy  the  goods, 
although  he  had  assigned  the  notes  given  in  evidence  of  the  purchase 
money,  and  that  no  one  else  could  maintain  such  action;  but  that 
he  would  hold  the  goods  and  the  proceeds  as  trustee  to  apply  the 
proceeds  to  discharge  the  notes.  Mere  endorsement  of  a  writing  evi- 
dencing the  purchase  of  goods  upon  credit  and  that  the  title  remains  in 
the  vendor,  does  not  entitle  the  endorsee  to  maintain  replevin,  Roof  v. 
Chattanooga  Co.,  36  Fla.  284.  18  So.  597;  Hyde  v.  Courtwright,  14 
Ind.  Ap.  106,  42  N.  E.  647.  There  must  be  a  previous  demand.  Moran 
V.  Abbott.  26  Ap.  Div.  570,  50  N.  Y.  Sup.  337;  Heinrich  v.  Van  Wrickler, 
80  Ap.  Div.  250,  80  N.  Y.  Sup.  226;  Adams  v.  Wood,  51  Mich.  411,  16 
N.  W.  788;  contra,  no  demand  is  necessary,  Proctor  v.  Tilton,  65  N.  H. 
3.  17  Atl.  638.  And  replevin  for  the  goods  is  not  a  disaffirmance  of 
the  contract,  Payne  v.  June,  92  Ind.  252; —  the  vendor  need  not  tender 
back  what  he  has  received,  Duke  v.  Shackelford.  56  Miss.  552;     Fair- 


CHATTEL     MORTGAGE.  215 

Ijanks  I'.  Molloy.  16  Ills.  Ap.  277.  Contra  Oskamp  v.  Crites,  37  Neb. 
837,  56  N.  W.  394.  And  if  the  contract  provide  that  upon  default 
the  vendee  may  take  possession  of  the  goods  and  retain  all  prior 
payments  as  liquidated  damages,  the  seller's  right  is  not  dependent 
upon  any  settlement  with  the  buyer,  Sanford  v.  Gates,  21  Mont.  277, 
53  Pac.  749.  But  in  Commercial  Co.  v.  Campbell  Co.,  Ill  Geo.  388,  36 
S.  E.  756,  it  was  held  that  if  after  receiving  partial  payment  the  seller 
brings  his  action  to  recover  the  goods  he  is  liable  to  account  for  what 
he  has  received  less  the  value  of  the  hire.  And  replevin  will  not  lie 
if  nothing  be  due  on  the  purchase  price,  even  though  a  part  be  yet 
unpaid,  Adams  v.  Wood,  51  Mich.  411,  16  N.  W.  788.  A  removal 
of  the  goods  contrary  to  the  conditions  of  the  sale,  but  which  has 
been  waived,  cannot  be  treated  as  a  conversion  so  as  to  relieve  of 
the  necessity  of  a  demand.  Where  the  thing  sold  is  a  stock  of  mer- 
chandise, additions  made  by  the  buyer  cannot  be  claimed  by  the  seller. 
Richardson  Co.  v.  Teasdall,  52  Neb.  C98.  72  N.  W.  1028.  And  the  vendor 
cannot,  as  against  a  subsequent  pledgee,  claim  goods  pledged  as  ad- 
ditional security  for  the  purchase  price,  no  record  of  the  writing  of 
pledge  having  been  made,  Farr  v.  Kilgour,  117  Mich.  227,  75  N.  W. 
457.  An  infant  who  has  purchased  a  machine  conditionally,  partial 
payments  to  be  retained  by  the  seller  for  its  use,  in  case  default  is 
made,  is  not  to  be  allowed  his  payments  where,  for  his  default  and 
an  attempted  concealment  of  the  machine,  the  seller  recovers  it. 
Wheeler  Co.  v.  .Jacobs.  21  N.  Y.  Sup.  1006.  Delay  does  not  impair  the 
right  of  vendor  to  take  possession.  Quinn  v.  Parke  Co.,  5  Wash.  276,  31 
Pac.  36G.  Mantelpieces  sold  conditionally  by  a  writing  recorded  in 
accordance  with  the  statute  remain  personalty,  though  set  up  in 
the  building  of  the  purchaser,  Nichols  v.  Potts,  71  N.  Y.  Sup.  765, 
citing,  Duffus  v.  Furnace  Co.,  8  Ap.  Div.  567,  40  N.  Y.  Sup.  925.  In 
Pennsylvania  a  sale  and  delivery  of  personalty  with  an  agreement, 
in  whatever  form,  that  the  title  still  remains  in  the  vendor,  is  void 
as  against  creditors  and  innocent  purchasers,  Ryle  v.  Knowles  Loom 
Works,  87  Fed.  976,  31  C.  C.  A.  340;  but  the  delivery  accompanied 
by  an  agreement  for  a  future  sale  on  the  payment  of  a  speiificd  i)ricp 
does  not  pass  the  property;  the  transaction  is  valid  even  as  against 
creditors  and  purchasers,  Jd. 

Assignee  of  the  vendor  in  a  conditional  sale,  is  bound  by  the  agree- 
ment of  the  assignor.  He  has  no  right  to  increase  the  purchase 
price,  or  demand  the  payment  of  other  sums,  as  the  condition  of 
making  title.  Kimball  v.  Farnum,  Gl  N.  H.  348.  Silence  of  the  pur- 
cliasf-r  in  a  conditional  sale,  when  the  assignee  of  the  vendor  pro- 
poses to  make  title  to  the  goods  if  the  buyer  will  discharge  other  sums 
of  money,  is  not  an  assent,  Id. 

Conditional  vendor  does  not  lose  title  by  taking  judgment  for  the 
prlre.     Forbes  Co.  v.  WIlHon,  Ala.  39  So.  645. 

The  plaintiff  purchaHod  of  the  defendant  a  piano  to  be  paid  for  by 
InstalmontH,  title  being  reHcrved.  She  Hubsefiuently  married.  Pay- 
mentH   upon    the   contract    were  afterwards   made   l)y    the    husband    on 


216  THE    LAW    OF    REPLEVIN. 

the  wife's  account.  At  a  later  date  the  wife's  contract  to  purchase 
was  surrendered,  and  a  similar  contract  executed  by  the  husband. 
Default  having  been  made,  the  vendor  retook  the  property.  It  was 
held  that  the  wife  was  not  entitled  to  an  action  f^r  conversion.  The 
new  arrangement  with  the  husband  being  a  mere  substitution  for 
the  original  contract,  did  not  deprive  the  seller  of  his  title.  Lane  v. 
Dreger,  Minn.  103  N.  W.  710. 

Tender  of  the  purchase  price  by  the  vendee,  invests  him  with  the 
title,  Id.  Goods  delivered  by  A.  to  B.  to  be  sold  by  B.  if  he  should 
have  demand  for  them,  and  then  to  be  paid  for,  or  if  not  sold  they 
were  to  be  returned  on  demand.  Held,  that  the  property  vested  in  B., 
Cook  V.  Gross,  60  Ap.  Div.  446,  69  N.  Y.  Sup.  924. 

A  vendor  of  furniture  with  the  knowledge  that  it  is  to  be  used 
to  equip  a  house  of  ill  fame  is  deemed  to  aid  in  the  immoral  anu 
illegal  purpose  of  the  purchaser,  and  will  not  be  heard  as  against 
one  who  purchased  the  goods  on  execution  against  the  original  vendee 
to  assert  the  conditional  character  of  his  sale  and  his  retention  of 
the  title.  Standard  Co.  v.  Van  Alstine,  22  Wash.  670,  62  Pac.  145,  51 
L.  R.  A.  889. 

In  Michigan  by  statute  a  condition  in  the  sale  of  chattels  that  the 
vendor  retains  title  until  payment,  is  invalid  as  to  subsequent  bona 
fide  purchasers.  Hogan  v.  Detroit  Company,  Mich.  103  N.  W.  543. 
In  Texas  all  reservations  of  the  property  in  chattels  as  security  for 
the  purchase  money  are  declared  by  statute  to  be  mortgages,  and, 
when  possession  is  delivered  to  the  vendee,  are  void  as  to  creditors 
and  bona  fide  purchasers  unless  registered.  The  effect  of  this  is 
declared  to  be  that  the  transaction  is  a  chattel  mortgage,  even  as 
between  the  parties,  whether  in  writing  or  parole;  and  that  as  to 
subsequent  bona  fide  purchasers,  the  reservation  of  title  by  parole 
is  void.  Eason  v.  De  Long,  Tex.  Civ.  Ap.  86  S.  W.  347;  Crews  v.  Har- 
lan, Tex.  87  S.  W.  656;  Wright  v.  Texas  Company,  Tex.  Civ.  Ap.  90 
S.  W.  905. 


PROPERTY    SEIZED    FOR    A    TAX. 


217 


CHAPTER  X. 


PROPERTY  SEIZED  FOR  A  TAX. 


Section. 

Property  seized  for  the  payment 
of  a  tax  not  repleviable  .         .  224 

Irregularity  in  issuing  tlie  war- 
rant does  not  change  the  rule  225 

Nor  the  fact  that  no  taxes  are 
due  from  the  party  whose 
goods  are  seized      .        .        .  326 

Prohibition  extends  to  goods 
seized  for  tax  due  the  United 
States  or  an  incorporated  vil- 
lage  227 

The  usual  form  of  the  proiiibi- 
tion  is  a  requirement  in  tlie 
affidavit 228 

The  jealousy  with  which  the 
courts  look  upon  attempts  to 
evade  this  requirement  .        .  229 

Questions  of  double  assessment 
cannot  be  tried  in  this  action  230 

Property  seized  for  the  payment 
of  a  tax  due  from  anotlier  per- 
son     231 

The  same 232 

The  prohibition  of  this  remedy 
does  not  affect  the  rights  of 


Section 
the  party  to  employ  any  other 
remedy     ..... 

The  action  jtermitted  where  the 
plaintiff  does  not  ask  deliv- 
ery of  he  property 

The  proliibition  does  not  extend 
to  a  purchaser  at  tax  sale 

The  bare  assertion  of  the  defend- 
ant that  the  goods  are  seized 
for  tax,  not  sufficient 

The  warrant  must  be  regular  on 
its  face,  and  purport  to  be 
issued  by  competent  author- 
ity    •      ' 

It  must  appear  to  be  for  a  tax 
which,  by  legal  possibility, 
may  be  valid    .... 

The  seizure  must  be  by  an  offi- 
cer     

Where  an  officer  goes  out  of  his 
bailiwick  .... 

The  prohibition  extends  to 
goods  seized  for  payment  of 
a  fine 

Replevin  against  a  purchaser    . 


233 


234 


235 


236 


237 


238 


239 


240 


241 
242 


§  224.  Property  seized  for  the  payment  of  a  tax  not  re- 
pleviable. There  i.s  a  provision  common  to  the  laws  of  all  the 
Suites,  thiit  goods  sei/x'd  on  legal  jjroeess  issued  for  the  ooUeotion 
of  a  tax  cannot  Ije  retak(;n  from  the  ottieer  by  a  writ  of  replevin.' 


'People  V.  Albany  C.  P.,  7  Wend.  484;  Ullbo  v.  Henderson.  21  Iowa, 
56;  Macklot  v.  City  of  Davenport.  17  Iowa,  379;  Hershey  t'.  Fry.  1 
Iowa.  r>93;  Vorht  v.  Reed.  70  111.  491;  LeRoy  r.  East  Saj,'.  Ry.  Co..  18 
Mlf'h  233;    McClaughry  v.  Crat/.enbcrg.  39  HI.   122;    Drlnghurst  v.  Pol- 


218  THE    LAW    OF    REF'LEVIN. 

Till'  reason  for  tliis  rule  is  found  in  the  necessity  for  protecting' 
tlic  pultlic  revenue,  and  to  prevent  the  delay  in  its  collections 
wliicli  niiglit  result  if  property  seized  by  an  oftieer  upon  a  warrant 
for  the  Collection  of  taxes  were  permitted  to  be  taken  from  his 
hands  pending  an  inquiry  into  the  jjropriety  of  the  seizure. 
Wliile  other  and  ample  means  of  redress  are  provided  for  the 
owner,  in  case  his  property  is  wrongfully  distrained,  this  remedy 
is  forbidden.  Tiie  prompt  collection  of  the  i)ul)lic  revenue  is  re- 
garded as  a  standing  and  public  exigency,  to  which  private  rights 
nuist  yield  or  be  abridged;  at  least,  of  this  action.  The  law 
therefore  forbids  replevin  of  goods  so  .seized,  and  remits  the  party 
to  his  action  for  trespass  or  trover,  or  such  other  proper  action 
as  he  may  elect.^  "  Di-sastrous  indeed,"  says  Justice  Bukkse, 
"  would  be  the  consequences  to  the  public,  was  it  allowed  to 
every  tjixable  inhabitant  who  may  have  conceived  a  notion  that  a 
law  of  general  application  imposing  taxes  is  void,  and  therefore 
he  shall  be  permitted  to  arrest  its  operation,  and  thus  breakdown 
the  financial  system  of  the  State.  If  one  may  do  it,  the  whole 
connnunity  maj',  and  ruin  and  disgrace  would  inevitably  follow 
the  extinction  of  the  State  credit  thus  brought  about.  The  law 
forbids  the  consideration  of  the  question  of  the  legality  of  a  tax, 
assessment  or  fine  levied  under  any  law  standing  on  the  statute 
book  of  this  State,  l)y  means  of  the  action  of  replevin,  and  for  the 
reasons  we  have  given." ' 

§  '225.  Irregularity  in  issuing  the  warrant  does  not 
change  the  rule.  Keplevin  will  not  lie  for  property  taken  by 
virtue  of  a  warrant  for  the  collection  of  a  tax,  even  though  the 
warrant  may  have  issued  erroneously  or  irregularly,  or  contrary 
to  law.  If  on  its  face  it  gives  the  officer  authority  to  collect  a 
tax,  and  to  seize  property  for  that  purpose,  replevin  for  property 
so  seized  cannot  be  sustained  in  this  action.  It  is  not  that  greater 
license  is  given  to  an  officer  collecting  a  tax  than  to  one  executing 
other  process.  An  irregular  warrant  or  a  void  levy  of  a  tax 
warrant  is  no  protection  to  the  officer;  but  the  injured  party  can- 
not employ  replevin  ;  he  cannot  begin  a  contest  over  the  regularity 

lard,  (Ind.)  452;  Buell  v.  Ball,  20  Iowa,  282;  Hudler  v.  Golden,  36  N. 
Y.  446;  Stoddard  v.  Oilman,  22  Vt.  olO;  Troy  &  Lans.  R.  R.  v.  Kane, 
72   N.  Y.   614. 

''Stiles  V.  Griffith,  3  Yeates,  (Pa.)  82;  Heagle  v.  Wheeland,  64  111. 
423;  LeRoy  v.  East  Sag.  Ry.  Co.,  18  Mich.  233. 

'McClaughry  v.  Cratzenberg,  39  111.  122. 


PROPERTY    SEIZED    FOR    A    TAX.  219 

of  the  proceeding  by  withdrawing  the  property  from  the  custody 
of  tiie  hiw/ 

§  226.  Nor  the  fact  that  no  taxes  are  due  from  the  party 
whose  goods  are  seized.  When  a  defendant  justified  under  a 
tax  warrant,  a  replication  that  there  were  no  taxes  due  from  the 
plaintiff  to  the  town  would  m  effect  bring  up  the  entire  question 
of  the  legality  of  the  tax,  and  such  a  replication  would  be  bad.'' 

§  227.  Prohibition  extends  to  goods  seized  for  tax  due 
the  United  States  or  an  incorporated  village,  riie  prohibi- 
tion is  not  confined  to  goods  seized  for  the  payment  of  taxes  due 
the  State,  but  extends  to  and  embraces  goods  which  have  been 
seized  by  viitue  of  a  warrant  for  the  collection  of  taxes  levied 
under  a  law  of  Congress,*  or  under  the  internal  revenue  laws  of 
the  United  States.^  So,  where  the  seizure  was  for  taxes  levied 
by  virtue  of  a  process  for  the  collection  of  a  tax  due  an  incor- 
porated city,  town  or  village,  levied  under  its  corporate  powers, 
the  same  rule  applies,  and  prohibits  replevin  of  the  property  from 
the  officer  seizing  it.  In  this  case  the  municipal  authorities  are 
regarded  as  a{;ting  under  a  law  of  the  State,  and  all  the  reasons 
which  prohibit  the  seizure  in  the  case  of  the  State  apply  when 
the  tax  is  for  the  benefit  of  a  local  municipal  corporation,  to  the 
same  extent  and  in  the  same  manner.  In  all  these  cases,  there- 
fore, when  the  seizure  has  been  made  by  an  officer  acting  under 
the  authority  of  a  tax  warrant  valid  on  its  face,  the  property 
seized  is  exempt  from  the  operation  of  the  writ  of  replevin.* 

§  22S.  The  usual  form  of  the  prohibition  is  a  requirement 
in  the  affidavit.  Tliis  exemption,  as  was  stated,  is  a  statutory 
provision  common  to  all  the  States  where  this  action  is  in  use  ; 
and  though  the  common  law  was  not  unlike  the  statute  on  this 
subject,  local  statutes  have  defined  and  emphasized  the  prohibition, 

*  People  V.  Albany  Com.  Pleas.  7  Wend.  485;  Ihidltr  v.  Golden.  SG 
N.  Y,  44G;  IJuell  v.  Schaale.  39  Iowa.  293;  Niagara  Kiev.  Co.  v.  Mc- 
Namara.  2  Hun.   (N.  Y.)   41G. 

'Mt.  Carbon  Coal  Co.  v.  Andrews,  53  III.  177. 

•O'Hellly  V.  Good.  42  Barb.  521. 

'Delaware  R.  R.  Co.  v.  Prcttyman,  7  Int.  Rev.  Roc.  loi;  I'ullon  v. 
KenKinger,  11   Int.  Rev.  Rec.  197;   Hrlre  v.  Elliot,  8  Legal  News.  322. 

'Mt.  f!:irl)on  Coal  Co.  v.  Andrews.  53  III.  183;  People  v.  Albany  Com. 
Plea,  7  Wend.  4S.''>;  Savaeool  v.  noughton,  5  Wend.  17S.  IHir  prorrss 
of  law  in  tlie  aHHesHment  of  taxes  does  not  rcqulri'  a  Judicial  proceed- 
ing. Mc.Millen  V.  Andr-rson,  K.  S.  Sup,  Ct.  Oct.  1877;  Cent.  Law  Jour- 
nal,  Nov.   23,   1877.  P.   41.';    PuUen   r.   K.iisint^cr.    II    In!     Rev    Rcc.    197. 


220  THE    LAW    OF    REPLEVIN. 

and  control  the  jn'actice  in  all  oases.  The  nsnal  form  of  tlie 
statutory  i)rohibition  is  a  provision  that  the  writ  shall  not  issue 
for  tlu'  delivery  of  the  property  in  any  case,  uidess  the  plaintiff 
siiall  lirst  tile  an  atiitlavit  that  the  goods  for  which  the  writ  is 
about  to  be  sU(mI  out  have  not  been  taken  for  any  tax,  etc.,  levied 
by  virtue  of  any  law  of  the  State.'-'  This  provision  is  imperative, 
and  any  attempt  to  evade  its  letter  or  spirit  will  be  regarded  as 
an  attempt  to  evade  one  of  the  vital  prerecjuisites  to  the  issuing 
of  the  writ.  When  the  plaintiff  tiled  an  affidavit  that  "the  i)rop- 
erty  had  not  been  taken  for  any  legal  tax,  as  this  affiant  is  in- 
formed and  believes,"  the  court  said  the  departure  from  the  re- 
quirements of  the  statute  was  very  palpable,  and  upon  the  jilain- 
tiff  desiring  leave  to  amend  the  affidavit,  the  court  refused  per- 
mission and  quashed  the  writ,  holding  that  it  was  informed  of 
the  design  of  the  plaintiff  to  test  the  constitutionality  of  the  law 
under  which  the  tax  was  assessed.  "  The  amended  affidavit,'* 
said  the  court,  "  if  filed,  and  trial  had,  would  have  presented  the 
same  question."  The  court  would  have  been  compelled  to  dis- 
miss the  suit  the  very  moment  it  was  shown  that  a  question  of 
taxation  was  involved,  and  the  constitutionality  of  the  law  impos- 
ing the  tax  was  the  hinge  on  which  the  case  turned.'^  Where 
the  defendant  in  replevin  pleaded  formally  that  the  property  had. 
been  seized  for  a  tax  due  the  town  of  Murphreysboro',  setting  up> 
also,  his  authority  as  collector  of  taxes,  and  the  plaintiff'  replied 
1st,  that  defendant  was  not  duly  or  legally  appointed  collector 
etc.  2d.  That  there  w^as  no  such  corporation  or  city.  3d,  No 
valid  ordinance  in  force  authorizing  defendant  to  distrain,  etc. 
4th.  Xo  tax  due  from  plaintiff.  5th.  The  goods  not  legally  dis- 
trainable.  To  these  replications  a  demurrer  was  interposed  and 
sustained,  and  an  appeal  taken  to  the  supreme  court,  where  the 
decision  was  affirmed,  the  court  holding,  1st.  Replication  was  no 
bar,  because  it  failed  to  deny  that  tlie  defendant  was  collector 
de  facto  or  dejure.  The  question  whether  he  was  lawfully  in 
office  could  not  be  tried  in  this  action ;  hence,  the  replication 
tendered  a  collateral  issue.  2d.  The  question  whether  the  town 
of  Murphreysboro'  was  legally  incorporated  could  not  be  tried  in 
this  proceeding.  Had  the  replication  been  that  the  town  had 
never  been  and  was  not  then  acting  as  a  corporation,  and  the 

»  See  Bringhurst  v.  Pollard,  6  Ind.   452. 

"McClaughry  v.  Cratzenberg,  39  111.   123.     See  McPhelomy   v.  Solo- 
mon, 15  Ind.  189. 


PROPERTY    SEIZED    FOR    A    TAX.  221 

defendant  acted  without  color  of  right,  the  question  would  have 
been  dififerent,  and  the  replication  nnght  have  been  sufficient. 
"The  fourth  replication  sought  to  present  the  question  whether 
there  was  any  tax  due  the  town.  It  would,  as  pleaded,  have 
opened  the  entire  question  whether  the  tax  was  legally  levied, 
and  might  have  led  to  an  investigation  whether  the  town  had 
observed  the  requirements  of  its  charter  and  ordinance  in  levy- 
ing the  tax,  and  led  to  the  very  controversy  which  the  General 
Assembly  intended  should  not  be  litigated  in  this  form  of  action." 
The  questions  of  the  legality  of  the  levy,  or  of  the  observance  or 
neglect  of  any  of  the  formal  requirements  of  the  levy,  cannot  be 
inquired  into  in  this  action." 

§  229  The  jealousy  with  which  the  courts  look  upon  at- 
tempts to  evade  this  requirement.  The  courts  look  with  ex- 
treme jealousy  upon  all  the  provisions  of  the  law  upon  this  sub- 
ject, and  any  attempt  to  evade  them,  or  by  indirection,  to  use 
this  wi-it  for  the  purpose  of  defeating  or  delaying  the  collection 
of  a  tax,  will  be  stranded  at  the  threshold.  Where  the  affidavit 
stated  that  the  property  had  not  been  taken  "  in  execution "  for 
any  tax,  assessment  or  fine,  the  court  said :  "  The  statute  required 
an  affidavit  that  the  property  had  not  been  taken  for  any  tax,  etc. 
The  plaintiff  has  sworn  that  it  had  not  been  taken  by  virtue  of  a 
particular  process,  that  is,  the  process  of  execution  ;  but  this  may 
be  true,  and  still  the  property  may  have  been  distrained  for  taxes," 
and  the  affidavit  was  held  insufficient.'^ 

§  2:^>0.  Questions  of  double  assessment  cannot  be  tried  in 
this  action.     (Questions  of  erroneou.s,  ilk'oal,  ov  doul)le  assess- 

"  Mt.  Carbon  C.  &  R.  R.  Co.  v.  Andrews.  53  111.  184. 

"Campbell  v.  Head,  13  111.  126.  When  property  which  has  been 
seized  for  a  tax  is  by  any  means  replevied  from  the  officer,  the  court 
will  at  once,  upon  that  fa<t  becoming  apparent,  dismiss  the  action 
and  order  a  return.  McClauRhry  v.  Crat/.enborg,  39  111.  123;  People  v. 
Albany  Com.  Pleas,  7  Wend.  485;  Bringhurst  v.  Pollard,  G  Ind.  452; 
DowcU  j>.  Richardson,  10  Ind.  574.  When  the  plaintiff  made  oath 
that  goods  were  not  taken  for  any  tax,  and  the  collector  and  his 
deputy  both  swore  in  positive  terms  that  It  was  taken  for  a  tax,  we 
should  probably  assume  that  the  plaintiff  was  mistaken,  and  did  not 
know  that  it  was  taken  for  a  tax.  O'Reilly  v.  (lood,  42  Barb.  521.  A 
tax  warrant,  regular  on  its  face.  Is  a  protection  to  the  officer,  so  far 
as  the  writ  of  rciilevin  is  concerned,  and  while  tlu'  owner  may  en- 
<iulre  into  the  legality  of  the  levy  by  certiinnri  or  other  proc(>C(Ilng. 
he  cannot  by  replevin  <if  the  jiropcrty.  llllbo  v.  llenderKon,  21  Iowa, 
67. 


222  THE    LAW    OF    REPLEVIN. 

iiu'iit,  cannot  be  tried  in  this  action.  If  error  in  the  assessment, 
or  luistakt'  or  illof]f;ility  in  the  levy,  could  be  tried,  very  few  cases 
would  he  found  to  hick  these  elements,  or  some  of  them.  Where 
a  collector  distrained  for  a  tax  assessed  ag;unst  the  owner  of 
j)ropcrty,  he  cannot  replevy  it  by  showing  that  it  was,  when  as- 
.sessi'd,  in  the  hands  of  an  agent,  and  had  l)een  assessed  as  be- 
longing to  the  latter,  and  the  tax  paid  on  such  assessment.'^ 

§  i2;n.  Property  seized  for  the  payment  of  a  tax  due  from 
another  person,  ^\'hcu  a  i^arty  has  his  pr()])erty  sciz-i'd  for  a 
tax  due  from  another  person,  with  whom  he  is  in  no  way  con- 
nected, and  for  which  he  is  in  no  way  responsible,  replevin  will 
be  permitted  at  the  suit  of  the  owner.  This  rule  will  not  apply 
where  the  tax-gatherer  finds  the  property  seized  in  the  possession 
of  the  delinquent  tax-payer ;  in  making  the  seizure  in  such  cases 
the  officer  does  nothing  but  his  duty.'*  But  when  the  tax  col- 
lector seizes  upon  the  property  of  A.  in  A.'s  possession,  to  satisfy 
a  tax  due  from  B.,  whether  the  seizure  be  by  design  or  evident 
mistake,  the  act  is  wrongful,  and  the  warrant,  though  never  so 
formal  and  proper  so  far  as  A.  is  concerned,  j^et  it  is  no  warrant 
against  B.,  and  by  all  the  analogies  of  the  law  in  similar  cases, 
will  not  furnish  any  justification  to  the  officers.'^  A  Avarrant  for 
the  collection  of  taxes  by  distraint  on  the  goods  of  A.  is,  in  fact,  no 
justification  of  a  wilful  trespass  by  the  officer  upon  the  goods  of 
B.,'*  and  replevin  will  lie. 

§  232.  The  same.  The  case  of  Vocht  v.  Jieecl,  70  111.  491, 
holds  a  doctrine  directly  contrary  to  that  stated  above.  The  law 
in  Illinois  is  of  course  settled  by  this  case :  and  in  States  where 
a  similar  statute  exists,  should  the  ease  arise  for  the  first  time, 
the  construction  adopted  in  Illinois  may  be  followed,  or  the  de- 
cision in  Michigan  or  New  York  may  be  thought  the  most  worthy 
example." 

"Palmer  v.  Corwith,  3  Chand.  (Wis.)  297. 

"Sheldon  v.  Van  Buskirk,  2  Const.    (N.  Y.)    473. 

"Travers  v.  Inslee,  19  Mich.  100;  Stockwell  v.  Veitch,  15  Abb.  Pr. 
412. 

"Atlantic,  etc.,  R.  R.  v.  Cleino,  2  Dillon,  175;  Noyes  v.  Haverhill,  11 
Cush.  338.     See  and  compare  Heagle  v.  Wheeland,  65  HI.  425. 

"Opinion  of  the  court  by  Mr.  Justice  Crak;:  Upon  comparison  o<' 
the  two  clauses  of  §  3,  it  will  be  seen  there  is  a  striking  difference 
between  them.  The  one  reads,  "  And  that  the  same  has  not  been  taken 
for  any  tax,  assessment  or  fine,  levied  by  virtue  of  any  law  of  this 
state;  "  and  the  other  clause  reads,  "  nor  seized  under  any  execution 


PROPERTY    SEIZED    FOR    A    TAX.  223 

§  233.  The  prohibition  of  his  remedy  does  not  affect  the 
right  of  the  party  to  employ  any    other  proper    remedy. 

While  the  hiw  prohibits  the  use  of  the  aetion  of  replevin  for  the 
recovery  of  goods  seized  for  a  tax,  it  by  no  means  debars  the  in- 
jured party  of  other  and  proper  remedies.  The  intention  of  the 
law  is  to  prevent  the  withdrawal  of  property  seized  for  a  tax 
from  the  custody  of  the  officer ;  not  to  prevent  the  party  from 
proceeding  to  recover  damages  in  case  the  seizure  was  wrongful. 
The  owner  of  goods  so  seized  may,  therefore,  sue  the  officer  in 

or  attachment  against  the  goods  and  chattels  of  such  plaintiff  liable 
to  execution  or  attachment."  Where  the  goods  of  a  stranger  to  an 
execution  are  taken,  he  can,  with  truth  and  propriety,  swear  that  the 
property  was  not  taken  by  virtue  of  an  execution  or  attachment  against 
his  goods  and  chattels  liable  to  execution  or  attachment;  but  where 
property  is  taken  by  a  tax  collector  under  a  warrant  for  taxes,  a 
different  case  is  presented.  The  point  is  not  whether  the  property 
is  liable  to  a  tax  warrant,  as  is  the  case  when  taken  on  execution 
or  attachment,  but  has  the  property  been  taken  on  a  tax  warrant? 
If  it  has,  the  writ  of  replevin  cannot  issue,  because  the  statute  says 
no  writ  shall  issue  until  an  affidavit  is  filed  that  the  property  has  not 
been  taken  for  any  tax  assessment  or  line  levied  by  virtue  of  any  law 
of  this  state.  The  effect  of  the  statute  is  that  the  action  of  replevin 
does  not  lie  in  any  case  where  the  property  is  seized  by  a  tax  collector 
under  a  tax  warrant.  The  object  and  intent  of  the  statute  are  obvious. 
The  government  cannot  be  carried  on,  and  the  laws  enforced,  without 
the  revenue  is  collected.  If  the  collectors  of  the  revenue  were  to  be 
hampered  and  tied  up  by  replevin  suits  when  they  are  collecting  taxes, 
it  would  be  found  difficult,  if  not  impossible,  to'make  collection;  and 
we  have  no  doubt  the  legislature  foresaw  these  difficulties,  and  pro- 
hibited the  action  of  replevin  for  the  very  purpose  of  avoiding  them. 
It  Is,  however,  insisted  by  appellee  that  it  is  a  great  hardship  to 
have  one  man's  property  taken  to  pay  a  tax  of  another.  The  tax 
collector  has  no  right  to  take  the  proi)erty  of  one  to  pay  the  tax  of 
another;  if  he  does  it,  he  is  liable.  The  injured  parly  has'his  remedy 
in  trespass  or  trover.  If  the  officer  takes  propi-rty  of  one  to  pay  the 
tax  of  another,  he  acts  at  his  peril;  and  the  laws  of  the  country  will 
compel  him  to  resjjond  in  ami)le  damages  to  the  injured  party;  so 
that  the  law,  while  It  prohibits  a  remedy  by  action  of  replevin,  affords 
ample  protection  in  another  form  of  action.  The  judgment  of  the 
circuit  court  will  be  reversed  and  the  cause  remanded. 

HuKKsK,  Chief  Justice,  dissenting:  I  cannot  believe  it  was  the 
intention  of  the  legiHlatiire  to  authorize  the  levy  and  sale  of  the 
property  of  A.  to  pay  the  taxes  of  U  The  design  of  the  statute  evi- 
dently wiiH  to  prevent  any  person  whose  property  has  been  levied  on. 
for  taxes  aHseHHcd  against  hini,  to  nuestion  it  In  an  action  of  replevin, 
and   th.it    iH   tl...  ivi.tii    of   .McChiughry  v.  Cratzenberg,  :{!»   111.    117.   as 


224  THE    LAW    OF    REPLEVIN. 

trespass,  or  any  other  proper  form  of  action,  and  may  recover  the 
vahie  of  liis  floods  with  dainafj^cs  for  tlic  takin<^  and  detention.'*' 

§  284.  The  action  permitted  where  the  plaintiff  does  not 
ask  delivery  of  the  property.  The  action  of  replevin  has  been 
perinittotl  to  contest  the  legality  of  a  tax  in  cases  where  the  plain- 
titr  docs  not  claim  delivery  of  the  goods  i)ending  the  suit.  This, 
it  will  be  observed,  in  no  way  interferes  with  the  prompt  collec- 
tion of  the  revenue,  Avhich  is  the  only  reason  for  the  general  rule, 
and  there  appears  no  objection  in  the  principle  to  allowing  the 
action  in  all  cases  as  a  means  of  contesting  the  validity  of  the  tax 
levy,  provided  the  writ  is  not  allowed  to  interfere  with  the  pos- 
session of  the  property  by  the  officer  who  holds  the  tax  warrant, 
or  delay  the  collection  of  the  tax.  The  statute  in  many  States 
permits  tlie  plaintiff  to  sue  in  this  form  of  action  without  asking 
deliverance  until  the  court  shall  have  had  an  opportunity  to  try 

the  reasoning  of  the  opinion  shows.  A  person  may  be  passing  through 
a  town  or  city  of  this  state,  with  his  vehicle,  and  it  was  seized  by  a 
tax-gatherer  for  the  taxes,  not  assessed  against  that  property  or  its 
owner,  but  against  another  person.  Under  this  decision,  that  official, 
in  Chicago  or  any  other  place,  can  enter  the  dwelling  of  a  person  and 
take  from  it  his  choicest  furniture,  his  heirlooms,  and  valuable  works 
of  art,  to  pay  taxes  not  assessed  against  it,  and  for  which  it  is  not 
liable.  It  is  poor  satisfaction,  and  the  merest  trifling  with  one's  right 
to  property,  to  say  he  can  sue  the  officer  in  trespass  or  trover.  The 
officer  may  not  be  able  to  respond  in  damages,  and  in  the  meantime 
the  owner  has  lost  an  article  of  property  for  which  money  would  be 
no  compensation,  as  there  is  a  matter  of  sentiment  involved  in  the 
possession  of  such.  It  would  be  no  satisfaction  to  one  on  a  journey 
to  have  his  horse  and  carriage  taken  from  him  in  this  way,  and  ba 
denied  a  speedy  remedy,  by  replevin,  to  repossess  himself  of  his  prop- 
erty and  proceed  on  his  journey.  Nor  would  it  be  to  a  farmer  who 
has  brought  a  load  of  wheat  to  market.  In  this  case,  there  is  no 
public  necessity  for  this  levy,  as  the  land,  upon  which  the  tax  was 
assessed,  was  immovable,  and  could  be  sold,  as  in  like  cases,  for  the 
taxes.  I  cannot  believe  it  could  have  been  the  intention  of  the  law- 
makers that  this  act  should  have  the  construction  now  given  by  this 
court.  Every  man's  property  is  now  at  the  mercy  of  the  tax-gatherer, 
whether  taxes  are  due  upon  it  or  not.  This  is,  in  my  ojjinion,  a 
great  wrong  and  injustice. 

Mr.  Justice  Scott:  I  concur  with  the  Chief  Justice  in  the  above 
construction  of  the  statute.     Vocht  v.  Reed,  70  111.  491. 

'"Dow  V.  Sudbury,  5  Met.  73;  Shaw  v.  Becket,  7  Cush.  442;  Cardinal 
V.  Smith,  Deady.  C.  C.  197;  Ware  v.  Percival,  61  Me.  391;  People  v. 
Supervisors  of  Chenango,  11  N.  Y.  563;  Supervisors,  etc.,  v.  Manny, 
56  111.  161;  Lauman  v.  Des  Moines  C,  29  Iowa,  310. 


PROPERTY    SEIZED    FOR    A    TAX.  225 

the  title  and  pronounce  upon  the  rights  of  the  parties.  In  such 
case  the  action  is  siniiLir  to  trover ;  the  judgment  is  for  the  prop- 
ert3%  or  its  vahie  in  case  it  cannot  be  had.  This  proceeding  in  no 
way  delays  the  collection  of  the  taxes,  and  none  of  tlie  rules  which 
apply  in  such  cases  apply  in  this.'® 

§  235.  The  prohibition  does  not  extend  to  a  purchaser 
at  tax  sale.  While  property  which  has  been  seized  upon  a  war. 
rant  for  the  collection  of  a  tax  or  a  fine  cannot  be  replevied,  the 
prohibition  goes  no  further  than  to  the  officer.  The  owner  of 
goods  wrongfully  seized  and  sold  for  taxes  may  employ  this 
remedy  agjiinst  the  purchaser,  and  may  show  that  the  judgment 
levy  or  sale  was  void,  or  that  no  tax  was  due,  or  in  fact  may  set 
up  any  error  which  would  make  the  sale  void.  A  void  judgment, 
levy,  or  sale  for  tax  conveys  no  better  title  to  the  purchaser  than 
a  void  judgment  upon  any  other  claim.  So,  also,  wliere  the  prop- 
erty is  seized  and  sold  for  a  tax  due  from  another  person,  the 
owner  may  have  replevin  against  the  purchaser.^" 

§  2'iH).  The  bare  assertion  of  the  defendant  that  the  goods 
are  seized  for  tax,  not  sufScient.  While  the  law  will  nut  per- 
mit the  action  of  replevin  in  a  case  where  the  property  sought  to 
be  recovered  was  seized  for  a  tax,  yet  the  bare  assertion  of  the 
defendant  that  such  is  the  case,  or  an  unsupported  plea,  will  not 
justify  the  court  in  refusing  to  proceed  with  the  case.  The  de- 
fendant sliould  produce  some  warrant,  or  valid  authority  to  him, 
to  take  tlie  property,  or  show  the  court  by  satisfactory  evidence 
that  his  claim  is  valid  and  just,  and  that  the  seizure  was  made  in 
the  discharge  of  his  duty  as  a  tax  collector.-'  Were  tlie  law 
otherwise  any  defendant,  whether  an  officer  or  trespas.ser,  might 
claim  the  immunity  which  the  law  only  extends  to  its  officers. 

§  'J37.  The  warrant  must  be  regular  on  its  face,  and  pur- 
port to  be  issued  by  competent  authority.  Tlie  warrant 
must  be  regular  on  its  face  ;  it  nnist  purport  to  be  a  regular  tax 
warrant;  it  must  in  terms  authorize  the  ollicer  to  proceed  with 
the  collection  (jf  tlie  tax  mentioned  by  .sciznic  of  the  goods  of  the 
tax  payer.     It  must  also  purport  to  be  issued  liy  .some  competent 

'•  Dudley  v.  Ross,  27  Wis.  080. 

••Dudley  v.  Ross.  27  Wis.  079;  Macklot  r.  Davenport.  17  Iowa.  379; 
Heagle  v.  Wheciand,  G4  111.  423;  Stiles  v.  CiillithH,  .'{  Yeates  (Fa.)  82; 
Bilbo  V.   HenderKon.   21    Iowa,  57. 

"  Mt.  Carbon  Coal  Co.  v.  Andrews.  53  111.  177;    Iludler  v.  Oohlen,  3t; 
N.  Y.  446;  LeRoy  v.  East  Sag.  R.  R..  18  Mkh.  238. 
15 


226  THE    LAW    OF    REPLEVIN. 

legal  authority,  and  must  be  for  a  tax  which  can  by  legal  possi- 
bility be  levied."  A  sliani  warrant  issued  by  irresponsible  parties, 
or  a  regular  warrant  for  a  sham  tax,  where  it  is  apparent  from  the 
face  of  the  warrant  that  it  was  issued  without  jurisdiction^  will 
furnish  no  protection  to  the  officer  and  replevin  will  lie.  When 
the  law  authorized  the  village  trustee  to  assess  the  value  of  the 
improvement  of  a  sidewalk  on  the  property  of  adjoining  owners, 
and  they  did  assess  the  value  of  an  improvement  of  the  street,  and 
the  warrant  so  showed  on  its  face,  it  was  held  to  confer  no  au- 
thority, and  replevin  of  property  seized  under  it  was  sustained." 
So  when  the  defendants  justified  the  seizure  by  virtue  of  a  tax 
warrant  for  taxes  due  the  city  of  ]\Iuscatine  ;  the  boundaries  were 
extended,  taking  in  the  plaintiff's  farm  land  for  purposes  of  tax- 
ation, and  the  act  had  been  held  unconstitutional — held,  that  re- 
plevin would  lie."  And  in  the  latter  case  the  plaintiff  in  replevin 
was  held  not  estopped  from  denying  the  validity  of  the  tax  by  the 
fact  that  he  has  paid  several  similar  taxes  on  the  same  property 
before." 

§  238.  It  must  appear  to  be  for  a  tax  which,  by  legal  pos- 
sibility, may  be  valid.  It  must  appear  that  the  tax  was  such  as 
could  by  legal  possibility  have  been  properly  and  lawfully  levied 
by  regular  and  proper  legal  proceedings  for  that  purpose.  Thus, 
when  the  act  of  incorporation  of  a  railroad  company  provided  that 
the  company  should  pay  annually  a  specified  tax  of  one-half  of 
one  per  cent,  on  the  wiiole  amount  of  its  paid  in  capital  stock,  in 
lieu  of  all  other  taxes  on  the  proj)erty  of  the  company,  was  al- 
lowed to  sustain  replevin  against  a  collector  who  seized  their 
property  for  the  payment  of  a  tax  assessed  by  a  city  situated  on 
the  line  of  its  road.''®  Where  it  is  made  to  appear  that  the  tax 
under  which  the  seizure  was  made  was  never  levied,  or  that  the 
levy  was  afterwards  legally  rescinded,  the  owner  of  the  property 
seized  for  such  tax  may  sustain  replevin.  Thus,  at  a  town  meet- 
ing a  certain  tax  for  road  purposes  was  laid,  but  at  a  subsequent 
legal  town  meeting  the  tax  was  rescinded.  The  collector  could 
not  legally  proceed  to  collect  such  tax,  and  where  he  seized  prop- 


"Hudler  v.  Golden,  36  X.  Y.  446. 
"Wright  V.  Briggs,  2  Hill,  77. 
■*  Morford  v.  Unger,  8  Iowa,  82. 
"Buell  V.  Ball,  20  Iowa,  282. 
•LeRoy  v.  East  Saginaw  City  Ry.,  18  Mich.  237. 


PROPERTY    SEIZED    FOR    A    TAX.  227 

erty  for  that  purpose  the  owner  was  permitted  to  sustain  re- 
plevin." 

§  239.  The  seizure  must  be  made  by  an  officer.  The 
seizure  must  be  a  legal  seizure  by  an  officer  duly  authorized  to  act 
in  that  behalf.  It  is  true  the  title  of  the  officer  cannot  be  ques- 
tioned in  this  action,*®  but  the  officer  must  at  least  assume  to  be 
an  officer  authorized  to  act  at  the  time  and  place  where  the  seiz- 
ure was  made.  An  officer  duly  authorized  in  one  county  or  dis- 
trict would  have  no  authority  to  go  into  another  county  or  dis- 
trict to  seize  property,  even  though  the  property  was  once  with- 
in his  bailiwick  and  assessed  there. 

"Stoddard  v.  Oilman,  22  Vt.  570. 

='Mt.  Carbon  Coal  Co.  v.  Andrews,  53  111.  183. 

Note  XIII.  Goods  not  Liable  for  the  Tax. — The  owner  may  replevy 
where  his  goods  are  seized  for  a  tax  upon  lands,  and  by  law  the  land 
alone  is  liable,  Buell  v.  Ball,  20  la.  282.  He  may  not  replevy  where 
the  statute  forbids  replevin  for  goods  taken  "  under  process."  The  tax 
warrant  is  process.  State  v.  Spiva,  42  Fed.  435;  nor  merely  because 
the  goods  were  not  assessable  to  the  plaintiiT,  Forster  t'.  Brown,  119 
Mich.  86,  77  N.  W.  C4C.  Goods  sold  while  free  of  any  lien  for  the  tax 
cannot  be  seized  for  the  tax  in  the  hands  of  the  purchaser.  One  who 
is  a  stranger  to  the  tax  and  not  in  privity  with  the  person  assessed, 
is  not  prohibited  by  the  statute  forbidding  replevin  for  goods  taken 
for  a  tax,  Tousey  v.  Post,  91  Mich.  631,  52  N.  W.  57. 

Absence  of  Laic. — Where  goods  not  assessable  are  levied  upon, 
replevin  lies.  Hood  v.  Judkins,  61  Mich.  575,  28  N.  W.  689.  Where  the 
statute  authorizes  the  taxation  of  the  goods  in  a  place  other  than  the 
residence  of  the  owner,  if  he  hires  or  occupies  there  "  a  place  for 
storage;  "  lumber  is  taxable  where  it  is  piled  to  dry  and  retained  for  a 
considerable  time.  Hood  v.  Judkins,  supra.  If  a  tax  is  levied  in  a  town- 
ship or  locality  having  no  authority  to  tax  the  particular  goods, 
replevin  lies.  McCoy  v.  Anderson,  47  Mich.  502,  11  N.  W.  290;  but  in 
Roberts  v.  Denio.  118  Mich.  544.  77  N.  W.  7,  it  was  held  that  where 
goods  have  been  taken  for  a  tax  replevin  cannot  be  maintained  by 
proof  of  the  Invalidity  of  the  tax. 

A  statute,  the  purpose  of  whlih  is  to  secure  indemnity  to-  a  muni- 
cipal corporation  for  expenditures  made  for  the  benefit  of  the  prop- 
erty owner,  is  to  be  liberally  construed;  If  it  empowers  the  municipal 
authorities  to  require  the  owner  to  Incur  the  expense,  and  the  frame 
of  the  writ  is  such  as  to  protect  the  officer,  the  property  owner  will 
not  be  permitted  to  maintain  replevin  for  goods  taken  under  It, 
Hudler  v.  Golden,  36  N.  Y.  446.  Except  l)y  statute  the  collector  has 
no  power  to  dlHtralri  perHonal  property  for  a  lax,  Hedraan  r.  Anderson. 


228  THE    LAW    OF    REPLEVIN. 

8  Neb.  180.  The  fact  that  the  officer  has  already  advertised  lands  for 
sale  for  a  portion  of  the  same  tax  is  no  ground  of  replevin,  Emerick  v. 
Sloan,  18  la.  139.  No  burden  is  upon  the  officer  to  show  a  legal  assess- 
ment, Adams  v.  Davis.  109  Ind.  10.  9  N.  E.  102.  The  fact  that  a  portion 
of  the  tax  is  illegal  will  not  warrant  rei)levin  for  the  goods,  Emerick  v. 
Sloan,   supra. 

Irregularities. — Mere  irregularities  in  the  tax  proceeding  are  no 
ground  for  replevin  where  the  tax  is  lawful,  Br.ell  v.  Ball,  20  la.  282; 
nor  where  the  school  district  board,  having  authority  to  tax,  have 
violated  a  long  prevailing  custom,  or  levied  an  extravagant  tax,  or 
made  the  levy  without  notice  to  the  electors,  of  the  district  meeting 
to  vote  the  tax,  Bilbo  v.  Henderson,  21  la.  5C;  or  where  the  warrant  is 
regular  upon  its  face,  Troy  Co.  v.  Kane,  72  N.  Y.  C14;  Power  v.  Kindschi, 
58  Wis.  539,  17  N.  W.  CS9;  however  irregular  the  proceedings,  Hood  v. 
Judkins,  supra.  Misnomer  of  the  ov.ner  in  the  warrant  will  not  sup- 
port replevin  where  the  statute  declares  that  "  no  tax  upon  property 
shall  be  held  invalid  "  for  such  misnomer.  Hill  v.  Graham,  72  Mich. 
660,  40  N.  W.  779.  Where  the  law  requires  the  County  Clerk  to  deliver 
the  tax  list  to  the  treasurer,  and  before  doing  so  to  attach  to  it  his 
warrant  under  the  seal  of  the  County  commanding  the  collection  of 
the  tax.  the  delivery  of  the  list  in  two  parts,  one  containing  the  per- 
sonal property  and  city  lots,  the  other  the  farm  lands,  with  the  warrant 
at  the  end  of  the  latter  only,  is  a  mere  irregularity  not  invalidating 
the  warrant,  Reynolds  v.  Fisher,  43  Neb.  172,  61  N.  W.  695;  Reynolds 
V.  McMillan.  43  Neb.  183,  61  N.  W.  099.  The  fact  that  the  return  day 
of  the  warrant  is  passed  and  that  the  officer  has  actually  returned  it, 
before  the  levy,  is  immaterial,  Keystone  Company  v.  Pederson,  93  Wis. 
466,  67  N.  W.  696.  The  fact  that  the  officer  at  the  time  of  the  seizure 
did  not  have  his  warrant  with  him  is  no  ground  to  replevy  the  goods, 
Bonnin  v.  Zuehlke,  Wis.  99  N.  W.  445.  A  demand  for  the  tax  need 
not  be  in  express  words,  it  is  sufficient  if  a  desire  of  payment  is  in- 
dicated. Id.  Goods  seized  for  a  tax,  though  the  seizure  be  made  with- 
out a  prior  demand,  and  the  statute  expressly  prohibits  such  seizure, 
cannot  be  replevied  by  the  person  who  is  himself  charged  with  the 
tax;  the  statute  providing  that  the  plaintiff  to  obtain  the  writ  must 
make  oath  that  the  goods  have  not  been  taken  under  process  against 
the  property  of  the  affiant  forbids  it.  State  v.  Spiva,  42  Fed.  435.  The 
taxation  of  the  wife's  goods  in  the  name  of  the  husband  will  not 
make  the  taking  unlawful  nor  the  officer  liable,  Enos  v.  Bemis,  61  Wis. 
656,  21  N.  W.  812.  That  the  tax  was  assessed  many  years  prior  to 
the  issue  of  the  warrant  under  which  the  officer  levied,  and  in  some 
of  the  intervening  years  was  omitted  from  the  warrant,  on  account 
of  the  absence  or  supposed  insolvency  of  the  taxpayer  is  not  ground  of 
replevin  for  the  goods,  Adams  v.  Davis,  109  Ind.  10,  9  N.  E.  162.  If 
there  was  a  valid  tax  and  the  officer  had  authority  to  levy  upon  per- 
sonalty, the  court  will  not  inquire  whether  his  proceeding  was  en- 
tirely regular  or  whether  he  made  proper  return,  Id.  Even  though 
the  warrant  issued  irregularly  or  erroneously  or  contrary  to  law,  if 


PROPERTY    SEIZED    FOR    A    TAX.  229 

on  its  face  it  gives  authority  to  collect  a  tax  and  seize  the  chattels 
for  that  purpose  replevin  cannot  be  maintained,  /(/.  The  protection 
of  the  statute  does  not  extend  to  the  purchaser  at  tax  sale,  Power  v. 
Kindschi,  supra. 

Fraud. — Where  goods  are  taken  for  a  sidewalk  tax,  levied  under 
authority  of  a  municipal  ordinance,  the  owner  will  not  be  permitted 
to  contest  the  tax  on  the  ground  that  the  ordinance  was  procured  by 
fraud.     Buell  v.  Ball,  20  la.  282. 

Lien  of  the  Tax. — Where  the  tax  upon  personalty  is  not  made  by 
statute  a  lien  thereon,  a  purchaser  of  the  goods  is  not  liable  for  the 
tax,  Lyon  v.  Receiver  of  Taxes,  52  Mich.  271,  17  N.  W.  839;  Tousey  v. 
Post,  91  Mich.  631,  52  N.  W.  57.  Where  the  tax  was  a  lien  only  from 
and  after  a  certain  day  a  purchaser  before  that  date  may  replevy, 
Tousey  v.  Post,  supra.  But  the  purchaser  of  personalty  then  subject 
to  a  lien  for  a  tax  cannot  replevy.  The  omission  of  the  return  to  the 
County  Treasurer  by  the  Township  Treasurer,  as  required  by  statute, 
prior  to  the  issuance  of  the  warrant,  makes  no  exception,  the  warrant 
under  which  the  seizure  was  made  being  fair  on  its  face,  Northwestern 
Co.  V.  Scott,  123  Mich.  357,  82  N.  W.  76. 

Tax  Against  a  Third  Person,  in  Possession  of  the  Goods. — By  the 
statute  of  New  York,  goods  which  by  consent  of  the  owner  are  in  posses- 
sion of  one  against  whom  a  tax  has  been  assessed  may  be  taken  for  the 
tax.  The  question  whether  in  the  particular  case  the  owner  was 
consenting,  is  for  the  jury,  Coie  v.  Carl,  82  Hun,  360,  31  N.  Y.  Sup. 
565.  Goods  taken  for  a  tax  against  another,  or  goods  which  may  under 
the  statute  be  lawfully  taken  by  the  collector  for  a  tax  upon  lands; 
e.  g.,  an  engine  and  cars  found  upon  such  land,  cannot  be  recovered 
in  replevin.  Lake  Shore  Co.  v.  Roach,  80  N.  Y.  339.  Goods  transiently 
upon  the  land  of  another,  but  under  control  of  the  owner  of  the  goods 
for  his  own  purposes,  are  not  "  in  possession  "  of  the  owner  of  the  land, 
within  the  meaning  of  the  tax  law,  Id. 

Payment  of  the  Tax. — The  payment  of  the  tax  subsequent  to  the 
institution  of  replevin  for  the  goods  distrained  by  the  collector  will 
not  support  the  action,  Bonnin  v.  Zuehlke.  122  Wis.  128,  99  N.  W.  445. 

Excessive  Tax. — If  the  goods  are  taken  for  an  excessive  tax  the 
owner  may  tender  the  just  amount  and  have  replevin;  but  his  tender 
must  be  continuous,  must  be  so  averred,  and  must  be  renewed  upon  the 
trial,   Miller  v.   McGehee,   60  Miss.   903. 

Evidence. — Under  a  statute  making  the  tax  warrant  presumptivoiy 
valid  it  Is  prima  facie  evidence  of  the  facts  stated  therein,  and  of  its 
own  validity,  Hood  v.  Judkins,  61  Mich.  575,  28  N.  W.  689.  Whero 
the  tax  warrant  is  regular  upon  its  face  the  olTlcer  need  not  In  re- 
plevin for  the  goods  distrained  show  a  legal  aKscssment,  Adams  v. 
DavlH,  109  Ind.  10.  9  N.  E.  162.  To  defeat  replevin  for  goods  taken  for 
a  tax  It  IB  only  neceHsary  to  show  that  there  was  a  tax,  tliat  the 
treasurer  had  the  authority  to  levy,  and  that  he  stlzed  and  took  the 
goods  Into  hlH  poHSf-HHlon.  Adams  v.  DavlH,  supra.  WliiTr'  It  |h  kIiowm 
that  the  goods  were  lak<n  for  a  lax   tin-  piulntlff'H  case  Is  at  an  end. 


230  THE    LAW    OK    REPLEVIN. 

§  240.  Where  an  officer  goes  out  of  his  bailiwick,  AVlien 
plaintiff's  wagon  was  distrained  for  a  school  tax,  it  appeared  that 
after  the  tux  was  levied  a  new  school  district  was  created,  and 
plaintiff  resided  in  the  new  district  and  contended  that  the  seizure 
by  distress  was  unlawfully  made  by  the  secretary  of  the  old 
district  within  the  limits  of  the  new.  Held,  that  tax  was  no 
lien  until  seizure  ;  that  the  tax  gave  no  right  to  seize  the  wagon 
where  it  could  be  found,  and  the  seizure  without  the  district  was 
unauthorized  and  illegal.  The  law  forbids  the  replevin  of  prop- 
erty seized  for  any  tax,  assessment  or  fine  levied  under  the  au- 
thority of  law.  The  principle  extends  to  the  seizure  as  well  as 
to  the  assessment,  and  equally  forbids  all  questions  respecting 
the  validity  and  regularity  of  the  warrant  and  of  the  assessment, 
but  there  nmst  be  some  color  of  authority  for  making  the  seizure. 
For  instance,  it  has  been  held  that  when  the  warrant  was 
issued  without  jurisdiction,  and  when  the  statute  under  which 
the  assessment  was  made  Avas  unconstitutional,  that  replevin 
would  lie.  If  this  were  not  the  rule  defendant  in  replevin  might 
always  defeat  the  action  by  pretending  that  the  property  had 
been  taken  to  satisfy  a  tax.  An  officer  without  his  bailiwick  is 
without  authority,  and  his  seizure  by  distress  for  tax  is  illegal.^' 

§  241.  The  prohibition  extends  to  goods  seized  for  the 
payment  of  a  fine.  The  statute  Avhich  prohibits  the  rei)levin 
of  goods  seized  for  the  payment  of  a  tax  also  embraces  goods 
seized  for  the  payment  of  a  fine.^"  Cases  of  replevin  for  goods 
seized  for  non-payment  of  a  fine  are  not  numerous,  but  the  same 
principles  would  apply  in  such  a  case  that  govern  cases  of  seizure 
for  tax.     The  seizure  should  be  by  process  formal  on  its  face, 

"McKay  V.  Batchellor,   2   Colorado,    591. 

'"Pott  V.  Oldwine,  7  Watts,  173;  Martin  v.  Mott,  12  Wheat.  19. 

Id.  The  statute  authorizing  the  prosecution  of  replevin  without  de- 
manding immediate  possession  of  the  goods,  malies  no  change  in 
the  rule;  the  plaintiff  must  show  that  he  was  entitled  to  immediate 
possession,  and  in  order  to  do  this  it  must  appear  that  the  goods  were 
not  taken  for  a  ta.x,  Id. 

Of  the  Judgment. — If  the  plaintiff  has  obtained  the  goods  by  falsely 
deposing  that  they  were  not  taken  for  a  tax,  the  judgment  should 
require  a  return  thereof,  Kaehler  v.  Dobberpuhl,  60  Wis.  256,  18  N.  W. 
841.  The  plaintiff  must  not  only  make  the  affidavit  required  by  the 
statute  but  he  must  establish  the  facts  therein  averred,  Adams  v. 
Davis,  supra. 


PROPERTY    SEIZED    FOR    A    TAX.  231 

issued  by  a  tribunal  which  has  by  law  authority  to  impose  a  fine, 
and  in  a  case  where  l-y  legal  possibility  a  fine  can  rightfully  be 
imposed.  The  execution  of  the  process  ought  to  be  by  an  officer 
who  at  least  is  an  officer  de  facto  at  the  time  and  place  where  the 
seizure  is  made.  Should  any  one  of  these  essentials  be  lacking 
in  a  seizure  for  a  fine,  by  the  analogies  Avhich  obtain  in  other 
cases,  replevin  would  lie  for  the  goods  so  seized.'^ 

§  242.  Replevin  against  a  purchaser.  Where  the  defend- 
ant justified  under  a  poundmaster's  sale,  it  was  held  that  an 
officer  to  justify  a  seizure  of  property  nuist  produce  a  process 
regular  and  valid  on  its  face.  That  to  sustain  a  sale  by  a  pound- 
master  he  ^\•ouId  be  bound  to  prove  that  the  animal  was  in  the 
situation  which  the  ordinance  had  designated  to  authorize  him  to 
make  seizure  before  he  could  be  justified.  The  main  fact  that 
they  are  officers  of  the  law  does  not  constitute  a  justification  for 
seizing  and  selling  property,  but  the  authority  must  be  shown. 
A  person  having  purchased  any  article  of  personal  property  at  a 
sheriff  or  constable's  sale,  and  sued  by  the  former  owner  for  its 
recovery,  must  deraign  and  show  his  title  through  and  by  an 
execution  against  the  claimant,  or  the  owner  of  the  property,  and 
a  sale  by  the  officer.  The  mere  proof  of  a  sale  would  not  suffice 
to  establish  the  transfer  of  the  title  to  the  purchaser.  Xor  has 
the  law  created  any  greater  or  different  presumption  in  favor  of 
sale  made  by  a  poundmaster  than  by  a  sheriff  or  constable.  In 
either  case  the  validity  of  the  sale  must  be  established  by  show- 
ing the  authority,  which  caimot  be  presumed.  In  the  one  case 
it  is  done  by  documentary  evidence  ;  in  the  other  it  is  necessarily 
oral."     Where  property  is  sold  for  ;i  fine  or  penalty,  the  owner 

"See  Martin  v.  Mott,  12  Wheat.  19. 

"Clark  V.  Lewis.  3.'3  III.  422.  Notk  XIV.  AnimaU  iinpounded.— 
In  replevin  for  animals  impounded  by  the  road  supervisor  as  running 
at  large  In  violation  of  the  statute,  i)laintiff,  no  failure  of  the  officer 
to  observe  the  requirements  of  the  statute  bein;;;  shown,  must  prove 
payment  or  tender  of  his  lawful  charges,  Wilhelm  r.  Scott,  14  Ind. 
Ap.  275.  40  N.  E.  537,  42  N.  E.  827.  Whoever  justifies  the  Impounding 
of  live-Btock  running  at  large  must  comply  strictly  with  the  substantial 
requirements  of  the  statute;  notice  given  to  a  son  of  the  owner  who 
resided  upon  her  farm  where  the  hogs  were  kept,  and  looked  after 
the  mother's  buHlness,  not  directed  to  his  as  agent,  was  held  not  suf- 
fl(  lent,  Wyman  v.  Turner,  14  Ind.  Ap.  118.  42  N.  R,  r,.',2.*  No  dls(i^lctlon 
ran  be  taken  befwcrn  an  offi(  er  and  a  private  Individual;  each  must 
obherve  the  statute.  Id.     The  fact  that  the  owner  sent  for  the  animals 


232  THE    LAW    OF    REPLEVIN. 

may  employ  replevin  against  the  purchaser,  and  require  liini 
to  show  the  validity  of  the  proceeding  under  which  the  sale  was 
made." 

"Heagle  v.  Wheeland,  64  111.  423. 

the  same  person  upon  whom  the  notice  was  served,  does  not  change 
the  result.  Id.  Where  only  a  resident  is  permitted  by  the  statute 
to  impound  animals  running  at  large,  one  who  justifies  upon  this 
ground  must  aver  residence  in  the  township  at  the  time  of  the  act 
done,  residence  at  the  time  of  answering  will  not  suffice,  Frazier  v. 
Goar,  1  Ind.  Ap.  38,  27  N.  E.  442.  One  who  claims  an  animal  as  "  takeu 
up  "  under  the  estray  laws  must  show  a  strict  compliance  with  the 
statute,  James  v.  Fowler,  90  Ind.  563;  he  can  exact  nothing  buts 
indemnity,  Amory  v.  Flyn,  10  Johns,  102.  If  he  fails  to  comply  with 
the  statute  he  is  a  trespasser  ah  initio,  so  that  if  the  animal  strays 
from  him,  his  prior  wrongful  possession  will  not  sustain  replevin 
against  one  afterwards  found  in  possession  and  claiming  to  be  the 
owner,  Bayless  v.  Le  Faivre,  37  Mo.  119.  It  seems  that  until  the 
contrary  appears  it  will  be  presumed  that  the  officer  advertised  tn«j 
animals  according  to  the  statute,  Wilhelm  v.  Scott,  supra;  Tjut  this 
proposition  seems  questionable.  Animals  which  have  broken  out  of 
an  enclosed  pasture  and  which  the  owner  promptly  sets  out  to  recover 
on  learning  of  their  escape,  are  not  "  running  at  large  "  within  the 
meaning  of  the  statute,  Wolf  v.  Nicholson,  1  Ind.  Ap.  222,  27  N.  E.  50.5"; 
McBride  v.  Hicklin,  124  Ind.  499,  24  N.  E.  755.  Where  the  animals 
are  found  in  a  partially  enclosed  pasture  not  the  property  of  their 
owner,  they  are  not  "  running  at  large,"  or  "  pasturing  upon  any  of 
the  enclosed  lands  "  of  the  township,  Nafe  v.  Leiter,  103  Ind.  138,  2 
N.  E.  317.  The  statute  permitting  a  possessory  warrant  when  posses- 
sion has  been  taken  "  under  some  pretended  claim  or  authority  with- 
out lawful  warrant,"  it  appeared  that  defendant  as  marshal  of  th^ 
city  had  impounded  plaintiff's  colt  running  at  large  v.-ithin  the  city 
limits  contrary  to  an  ordinance,  it  was  held  that  judgment  of  retorno 
-was  erroneous,  King  v.  Ford,  70  Geo.  628. 


GOODS  IN  THE  CUSTODY  OF  THE  LAW. 


23a 


CHAPTER    XL 


GOODS  IN  THE  CUSTODY  OF  THE  LAW. 


Section. 

Replevin  does  not  lie  for  goods 
in  the  custody  of  the  law 

Limitation  upon  this  rule  . 

Lies  for  goods  wrongfully  seized 
by  an  officer  upon  process 

Of  the  right  of  a  person  to  take 
possession  of  his  goods  whicii 
have  been  wrongfully  seized 
by  an  officer     .... 

Replevin  does  not  lie  for  goods 
in  the  hands  of  a  receiver  of 
court 

Does  not  lie  at  the  suit  of  a  de- 
fendant in  execution  against 
the  sheriff        .... 

Nor  at  the  suit  of  a  grantee  of 
such  defendant  after  the  seiz- 
ure     

The  reason  for  tiie  rule 

Qualifications  of  the  rule  . 

Does  not  lie  for  liquors  seized 
under  an  act  to  prevent  tlie 
sale  of  intf>xicating  beverages  2.')'i 

But  the  writ  was  allowed  wliere 
the  seizure  was  under  an  ordi- 
nance which  had  been  de- 
clared void  by  a  court  of 
compftent  jurisdiction    . 

Does  not  lie  for  cattl*;  leKally 
imp<junded        .... 

Lies  for  pfjwder  soized  uiidi*ran 
ordinance  prohibiting  its  in- 
troduction in  large  (plant  ities 
int^j  a  city        .... 

yDoes  not  iif  f<ir  |iroj>«Tly  taken 


243 
244 

245 


246 


247 


248 


249 
250 
2.51 


25:5 


254 


255 


Section, 
on  a  writ  of  replevin  until  after 
the  former  case  is  decided      .  2.56 

The  distinction  between  a  writ 
of  replevin  and  an  execution 
or  attaclinient .         .         .         .  257 

Cross-replevin  not  allowed   258,  259 

The  sheriff  cliarged  with  the  ex- 
ecution of  process  must  ob^}' 
it  at  his  peril    .         .         .  260,  261 

Replevin  lies  for  goods  wrong- 
fully sold  by  sheriff  on  execu- 
tion    262 

Distinction  between  replevin 
for  the  goods  and  an  action 
again.st  the  officer  as  a  tres- 
passer         263 

Writof  replevin— wlien  and  liow 
far  a  protection  to  tlie  officer 
.serving  it  ....  264 

Whether  the  writ  authorizes  a 
seizure  of  the  goods  from  a 
stranger    ....  265.  266 

Writof  return  aiithorizesseizure 
only  from  the  person  named  .   267 

Replevin  lies  for  ex«'mpt  prop 
erty  wrongfully  seized    .         .  268 

The  aid  of  thi-  ^statuto  niu.st  be 
invoked 269 

The  exemption  a  jx-Lsoiial  priv- 
ilege   270 

The  same.  Damages  and  costs 
in  H\u]\  cases  .         .         .         .271 

Jurisdiction  in  replevin,  whore 
goods  have  been  wrongfully 
Hoiziid        .....  27i? 


234 


THE    LAW    OF    REPLEVIN. 


The  same.    The  question  stated  273 

The  rule  in  Freeman  r.  Howe  .  274 

The  doctrine  in  this  case  con- 
sidered       .        .         .      275  to  282 

Tlie  power,  duty  and  responsi- 
bility of  the  slicrifT  in  serving 
tlie  writ  of  replevin        .         .  283 

He  must  see  that  tlie  writ  is  in 
form        .         .        .        .        .284 

And  that  it  issue  from  a  court 
of  comi>etent  jurisdiction  to 
issue  such  a  writ        .        .        285 

Tlie  writ  does  not  authorize  a 
seizure  of  goods  from  the  per- 
son of  the  defendant     .        .     286 

The  right  of  an  officer  to  break 
and  enter  a  dwelling  to  take 
goods 287 

Parties  bound  to  know  the 
sheriff 288 

Duty  of  the  sheriflf  to  take  bond. 
His  liability  in  respect  to  the 
bondsmen        ....    289 

Extent  of  the  sheriff's  liability    290 


Return  by  sheriff  of  goods 
wrongfully  seized  by  him 

Duty  of  a  slierifF  on  receiving 
a  writ  of  replevin     , 

Duty  of  the  sheriff  with  respect 
to  severing  articles  claimed  to 
be  resil  estate 

The  liability  of  theofficera  per- 
sonal one        .... 

The  sheriff  liable  for  the  acts  of 
his  deputies 

Disputes  between  deputies  of 
the  same  sheriff  settled  by  him  296 

The  officer's  return     .        .         .297 

As  to  the  service  of  a  writ  of 
replevin 

Effect  of  the  replevin  of  prop- 
erty seized  on  execution 

Special  property  created  by  a 
levy  on  goods. 

Justification  by  an  officer     , 

The  defense  by  sheriff,  when 
goods  seized  are  replevied 
from  him        .        .        .     302,  303 


291 


292 


293 


294 


295 


298 

299 

300 
301 


§  243.  Replevin  does  not  lie  for  goods  in  the  custody  of 
the  law.  It  was  an  ancient  maxim  of  the  law,  that  goods  seized 
by  an  officer,  in  obedience  to  legal  process,  were  in  the  custody 
of  the  law.'  Tlie  court  regarding  the  officer  only  as  its  minister, 
and  goods  in  his  possession,  upon  the  order  or  mandate  of  the 
court,  as  in  the  custody  of  the  court,  they  could  only  be  taken 
upon  its  order  or  permission.  Any  attempt  to  interfere  with 
them,  without  such  permission,  was  looked  upon  as  a  contempt. 
Replevin,  therefore,  from  an  officer  so  holding  property  was 
looked  upon  as  a  contempt,  and  punished.^ 

'  McLeod  V.  Oates,  8  Ired.  (N.  C.)  387;  Jenner  v.  Joliffe,  9  Johns. 
3S4;  Buckley  v.  Buckley,  9  Nev.  379;  Raiford  v.  Hyde,  36  Geo.  93; 
Phillips  V.  Harriss.  3  J.  J.  Marsh.  (Ky.)  122;  Reade  v.  Hawks,  Hob.  16; 
Reeside  v.  Tischer,  2  Har.  &  G.  (Md.)  320;  Watkins  v.  Page,  2  Wis. 
97;  Hall  v.    Tuttle,  2  Wend.  478;  Morgan  v.  Craig,  Hardin,  (Ky.)   101. 

=  Funk  V.  Israel,  5  Iowa,  450;  Phillips  v.  Harriss,  3  J.  J.  Marsh.  (Ky.) 
123;  Cooley  r.  Davis,  34  Iowa,  128;  Powell  v.  Bradlee,  9  Gill.  &  J.  (Md.) 
220;  Hagan  v.  Deuell,' 24  Ark.  216;  Goodrich  v.  Fritz,  4  Ark.  525;  Allen 
V.  Staples,  6  Gray,  (Mass.)  493;  Beers  v.  Wuerpul,  24  Ark.  273;  Shear- 
ick  V.  Huber,  6  Binn.  4;  Spring  v.  Bourland,  6  Eng.  (Ark.)  658;  Wat- 
son V.  Todd,  5  Mass.  271;  Mulholm  v.  Cheney,  Addis,   (Pa.)   301;  Good- 


GOODS    IN    THE    CUSTODY    OF    THE    LAW.  235 

§  244.     Limitation  upon  this  rule.     This  rule,  though  still  in 
force,  must  be  understood  as  applying  only  to  cases  Avhere  the 

heart  v.  Bowen,  2  Bradw.  (111.)  578;  Badlam  v.  Tucker,  1  Pick.  389; 
Brownell  v.  Manchester,  1  Pick.  234;  Milliken  v.  Selye,  623;  Squires  t?. 
Smith.  10  B.  Mon.  33.  Though  trover  or  trespass  was  permitted.  Crom- 
well V.  Owings,  7  Har.  &  J.  55.  [Goods  in  the  hands  of  the  sheriff, 
under  writ  of  replevin,  cannot  be  taken  from  him  under  replevin, 
even  by  a  stranger  to  the  first  writ.  Welter  v.  Jacobson,  7  N.  Dak.  32, 
73  N.  W.  65;  Yost  t'.  Schleicher,  62  Neb.  601,  87  N.  W.  308;  Bonney  v. 
Smith,  59  N.  H.  411;  McCarthy  v.  Ockerman,  154  N.  Y.  565,  49  N.  E. 
153;  Weiner  v.  Van  Rensalaer,  43  N.  J.  L.  547.  But  it  seems  other- 
wise if  the  plaintiffs  in  the  first  writ  waive  actual  delivery  to  them; 
and  one  of  two  partners  may  effectually  agree  to  such  waiver,  Powell  v. 
Bradlee,  9  G.  &  J.  220.  And  the  sheriff  cannot  be  required  to  levy 
execution  upon  goods  which  he  holds  under  writ  of  replevin.  First  Na- 
tional Bank  v.  Dunn,  97  N.  Y.  149;  the  sheriff  is  not  liable  in  tresspass 
to  the  owner  of  goods  for  taking  them  under  writ  of  replevin  against 
another  having  them  in  possession,  Foster  v.  Pettybone,  20  Barb.  350;  — 
but  the  owner  may  take  his  goods  if  he  can  without  breach  of  the 
peace.  And  a  third  person  cannot  replevy  the  goods  even  by  proving 
that  they  are  not  those  named  in  the  writ,  because  the  parties  to  the 
original  writ  are  not  bound  by  the  judgment  in  the  se(y)nd  suit,  and 
the  sheriff  is  responsible  to  those  parties,  Welter  v.  Jacobson,  supra. 
In  Iowa  it  is  no  answer  that  the  defendant  as  sheriff,  holds  the  goods 
under  a  writ  of  replevin  at  the  suit  of  another  party;  the  goods  of  one 
person  cannot  be  taken  upon  a  process  against  another,  and  if  so  taken 
they  are  not  in  custody  of  the  law.  Davis  v.  Gambert,  57  la.  239, 
10  N.  W.  658.  In  New  Hampshire  it  was  held  that  where  goods  re- 
plevied had  been  delivered  to  the  plaintiff,  they  may  at  once  be  re- 
plevied by  another  claimant,  Bonney  v.  Smith,  59  N.  H.  411.  Goods 
attached  and  replevied  from  the  officer  cannot  be  taken  in  execution 
or  under  an  attachment  by  the  plaintiff  in  the  attachment  suit,  while 
the  replevin  is  pending.  Shull  v.  Barton.  56  Neb.  716.  77  N.  W.  132. 
The  marshal  who  seizes  goods  under  writ  of  replevin  from  the  federal 
court,  cannot  be  arrested  by  the  state  court  for  fo  doing;  the  owner 
must  come  into  the  federal  court  and  by  ancillary  process,  determine 
his  rights,  Beckett  v.  Sheriff  of  Harford,  21  Fed.  32;  and  where  prop- 
erty has  been  seized  under  writ  of  replevin  from  one  court  and  placed 
in  the  hands  of  the  plaintiff,  no  other  court  withoiU  supervisory  con- 
trol of  the  first  should  Interfere  with  such  possession.  Domestic  Society 
V.  Hinman,  13  Fed.  161.  But  in  Patterson  v.  Scaton,  64  la.  115,  19  N.  W. 
869,  It  Is  held  that  the  replevin  of  goods  from  an  officer  who  has  sel/od 
them  under  an  attachment  against  a  stranger,  docs  not  prevent  the 
levy  thereon  of  other  writs  against  the  sanif  defendant,  and  see 
JacobI  v.  SchlOHH,  7  ("oldw.  385.  Frankie  v.  Douglas,  1  Lea.  476.  And 
goods  delivered  to  the  plaintiff  In  replevin  under  bond  comlltloned  to 
return  the  goods  or  pay  tho  value,  If  return  shall  be  a<IJudK(>il,  are  In 


23C  THE    LAW    OF    REPLEVIN. 

seizure  is  rightful,  and  ui»()ii  v;ili<l  and  sufficient  process,  and  not 

generally  to  all  cases  where  an  officer  assumes  to  execute  process- 

§  2i^K     Lies  for  goods  wrongfully  seized  by  an  officer 

upon  process.     If  iui  officer,  in  attempting  to  execute  process  of 

custody  of  the  law,  so  far  as  the  parties  are  concerned,  and  exclude  the 
right  of  the  one  in  possession  to  sell  them;  the  successful  party  may 
pursue  them  in  the  hands  of  the  purchaser  pendente  lite,  Mohr  v. 
Langdon,  1G2  Mo.  474,  63  S.  W.  409, —  over-ruling  Donohoe  v.  McAleer, 
37  Mo.  312.  The  plaintiff  in  replevin  is  not,  while  the  action  of  replevin 
is  pending  answerable  as  a  garnishee  of  the  defendant;  he  holds  the 
goods  to  answer  the  suit;  they  are  in  custody  of  the  law,  Nicholson  v. 
Mitchell,  16  Ills.  Ap.  647. 

One  who  purchases  goods  from  the  defendant  in  replevin,  pending 
the  action,  the  defendant  being  in  posession  under  a  delivery  bond, 
is  bound  by  the  judgment;  the  goods  so  retained  are  in  the  custody  of 
the  law  and  the  defendant  can  make  no  transfer  which  will  defeat  the 
judgment  of  the  court,  Sherburne  v.  Strawn,  52  Kans.  39,  34  Pac.  405. 

And  goods  taken  in  execution  and  for  which  forthcoming  bond  has 
been  given,  are  in  custody  of  the  law  and  cannot  be  levied  upon  under 
another  execution.  Bates  County  Bank  v.  Owen,  79  Mo.  429.  The  mort- 
gagor's interest  in  mortgaged  chattels  is  not  attached  by  serving  trus- 
tee process  upon  the  mortgagee  who  is  in  possession.  The  goods  are 
not,  by  such  service,  in  the  custody  of  the  law.  Jenness  i;.  Shrieves, 
188  Mass.  70,  74  N.  E.  312. 

Goods  in  the  hands  of  the  plaintiff  in  replevin  cannot  be  subjected  to 
execution,  because  this  would  occasion  a  forfeiture  of  his  bond  without 
fault  on  his  part,  Caldwell  v.  Gans,  1  Mont.  570. 

And  so  as  to  goods  in  the  possession  of  the  defendant  under  forth- 
coming bond,  Semel  v.  Dunn,  55  N.  Y.  Sup.  1006,  citing  Bank  v.  Dunn, 
97  N.  Y.  156,  The  Bank  v.  Blye,  123  N.  Y.  132,  25  N.  E.  208. 

So,  where  a  third  person  claiming  goods  taken,  under  forthcoming 
bond,  Taylor  v.  Ellis,  200  Pa.  St.  191,  49  Atl.  946,  Hagan  v.  Lucas,  10 
Pet.  400,  9  L.  Ed.  397.  But  where  goods  were  seized  by  an  oflBcer  under 
execution  and  a  junior  mortgagee  brought  replevin,  and  the  oflBcer  gave 
bond  to  retain  the  goods,  it  was  held  that  a  senior  mortgagee  might 
maintain  replevin,  Ament  v.  Greer,  37  Kans.  648,  16  Pac.  102. 

The  weight  of  authority  is  that,  pending  replevin,  the  party  in  posses- 
sion cannot  confer  a  good  title  to  the  goods,  Union  National  Bank  v. 
Moline  Co.,  7  N.  Dak.  201,  73  N.  W.  527.  The  possession  of  the  party 
so  in  possession  is  temporary,  and  continues  only  until  the  right  is  de- 
termined, and  a  sale  by  him  confers  only  such  right  as  he  has. 

But  in  Katz  v.  Hlavac,  88  Minn.  56,  92  N.  W.  506,  it  is  held  that  goods 
replevied,  and  delivered  to  the  plaintiff,  under  bond  as  required  by  the 
statute,  or  to  the  defendant  on  forthcoming  bond,  are  no  longer  in 
custody  of  the  law,  the  bond  stands  in  place  of  the  goods,  and  one  in 
possession  may  dispose  of  them  as  if  no  action  were  pending. 


GOODS  IN  THE  CUSTODY  OF  THE  LAW.       237 

execution  or  attachment,  by  mistake  or  design  take  goods  not 
the  property  of  the  defendant  in  the  writ,  or  goods  not  hiwfuUy 
subject  to  seizure  on  sucli  writ,  lie  is  a  trespasser,  and  acquires 
no  right  to  the  goods  seized  ;  *  and  the  injured  party  may  have 
replevin  for  their  recovery,  or  may  proceed  against  the  officer  in 
trespass  or  trover,  at  his  election.* 

§  246.     Of  the  right  of  a  person  to  take  possession  of  his 
goods  which  have  been  wrongfully   seized  by  an  officer. 

'Clark  V.  Skinner,  20  John.  46S;  Tison  v.  Bowden,  8  Fla.  70;  Gard- 
ner V.  Campbell,  15  John.  401;  Chinn  v.  Russell,  2  Blackf.  172. 

*Hunt  r.  Pratt,  7  R.  I.  283;  Gibson  v.  Jenney,  15  Mass.  205;  Foss  v. 
Stewart,  14  Maine,  312;  Bean  v.  Hubbard,  4  Cush.  (Mass.)  85;  Deyo  v. 
Jennison,  10  .A.llen,  410;  Levitt  v.  Metcalf,  2  Vt.  343;  Hasklll  v.  Andros, 
4  Vt.  609;  Mulholm  v.  Cheney,  Addis,  (Pa.)  301;  Stone  v.  Bird,  IG  Kan. 
488.  [Cavener  v.  Shinkle,  89  Ills.  161;  Wise  v.  Jefferis,  51  Fed.  641, 
2  C.  C.  A.  432;  Rogers  v.  Wier,  34  N.  Y.  463;  Mitchell  v.  Sims,  124  N.  C. 
411,  32  S.  E.  735.  And  the  owner  of  the  goods  may  have  replevin  in 
any  court  of  competent  jurisdiction  of  the  state,  Wilde  v.  Rawles,  13 
Colo.  583,  22  Pac.  897;  Carpenter  v.  Innes,  16  Colo.  165,  26  Pac.  140; 
Scott  V.  McGraw,  3  Wash.  675,  29  Pac.  260; — even  though  the  process 
under  which  the  goods  are  taken  proceeds  from  the  Supreme  Court  of 
the  State,  State  v.  Brooker,  61  Miss.  16.  The  custodian  of  an  officer  in 
pursuance  of  a  valid  levy  cannot  be  dispossessed  under  junior  process, 
Flanagan  v.  Newman,  5  Colo.  Ap.  245,  38  Pac.  431.  And  the  statute  pro- 
hibiting "  cross-replevin  or  replevin  for  property  in  the  hands  of  an 
oflBcer ",  forbids  an  action  of  replevin,  even  by  the  owner,  who  is  a 
stranger  to  the  process  under  which  the  chattels  are  taken.  Butts  v. 
Woods,  4  Johns.  N.  M.  187,  16  Pac.  617.  But  a  statute  that  no  replevin 
shall  lie  at  the  suit  of  any  "  defendant  in  execution  "  has  no  appli- 
cation where  an  assignee  for  creditors  replevies  from  an  officer,  who 
has  seized  the  goods  on  execution  against  his  assignor.  Kingman  v. 
Reinemer.  166  Ills.  208,  46  N.  E.  786.  And  though  the  chattels  are  per- 
mitted to  remain  in  the  hands  of  the  debtor,  they  are  still  in  custody 
of  the  law  and  In  possession  of  the  officer,  and  this  prevents  another 
levy,  Pugh  v.  Callaway,  10  O.  St.  488,  Brown  v.  Loesch,  3  Ind.  Ap.  145,  29 
N.  E.  450.  But  in  Hove  v.  McHenry.  GO  la.  227,  14  N.  W.  301,  it  was 
held  that  although  the  sheriff  declare  a  levy  upon  the  goods,  and  exact 
a  delivery  bond  from  the  owner,  yet  if  he  do  not  remove  or  take  them 
into  possf'SKion  he  cannot  be  charged  in  replevin. 

The  mere  lion  of  an  execution  does  not  have  the  effect  to  place  the 
goods  In  custody  of  the  law,  Conley  v.  Deere,  11  Lea,  274.  A  tenant 
Instituted  an  action  against  his  landlord  to  restrain  certain  trespasses; 
Injunction  was  granted  which  allowed  the  landlord  to  assume  posses- 
sion of  the  ranch  and  cultivate,  graze,  etc.,  but  with  a  proviso  that  he 
"Hhoiijil  place  tho  straw  In  a  safer  onfloKurn  ami  protect  the  saino 
from  Injury  by  his  animals";  held  this  did  not  |)lace  the  straw  in 
custody  of  the  law,  Erecca  i'.  Meyer,  142  Calif.  308,  75  I'uc  826. J 


238  THE    LAW    OF    REPLEVIN. 

A  mail  is  not  a  trespasser  for  taking  possession  of  his  own  goods, 
if  he  does  so  peaceably ;  and  when  he  does  so  actjuire  the  posses- 
sion of  his  own  property,  tlie  fact  that  it  had,  before  then,  been 
levied  on  by  the  sheriff,  by  virtue  of  an  execution,  or  taken  on  a 
writ  of  replevin,  to  which  he  was  not  a  party,  will  not  render 
him  liable  as  a  trespasser ;  nor  would  replevin  lie  against  him 
for  the  possession  of  his  property  so  taken.*  When,  therefore, 
goods  which  had  been  levied  on  by  the  sheriff  came  peaceably  to 
the  possession  of  the  owner,  who  was  a  stranger  to  the  execu- 
tion, and  they  were  retaken  from  him  by  the  sheriff,  he  was 
entitled  to  sustain  replevin  for  their  recovery.^  This  is  but  an. 
application  of  the  well-known  rule,  that  an  officer,  taking  posses- 
sion of  goods  by  virtue  of  process,  must  keep  possession.  A 
voluntary  surrender  releases  the  levy. 

§  247.  Replevin  does  not  lie  for  goods  in  the  hands  of  a 
receiver  of  court.  Property  in  the  hands  of  a  receiver  of  court, 
duly  appointed  to  take  charge  of  that  property,  is  in  the  custody 
of  the  law,  and  cannot  be  seized  upon  execution  or  attachment, 
or  rejolevied  without  permission  of  the  court  by  whose  appoint- 
ment it  is  held.  It  is  for  the  time  in  the  custody  of  the  court,  to  be 
disposed  of  as  the  law  directs.'  But  when  the  receiver  assumes 
to  hold  property  not  included  in  the  decree,  and  to  which  the 
debtor  never  had  any  title,  with  respect  to  such  goods  he  is  not 
regarded  as  an  officer,  but  as  a  trespasser,  and  the  rightful  owner 
can  sue  him  in  any  appropriate  form  of  action,  either  for  the 
property  or  for  damages.''     The  more  appropriate  course  would 

■>  Spencer  v.  M'Gowen,  13  Wend.  256;  Sims  v.  Reed,  12  B.  Mon.  (Ky.) 
51;  Wood  V.  Hyatt,  4  John.  313;  Hyatt  v.  Wood,  4  John.  150;  Merritt  v. 
Miller,  13  Vt.  416;  Barnes  v.  Martin,  15  Wis.  240;  Marsh  v.  White,  3 
Barb.  518;  Kunkle  v.  State,  32  Ind.  220;  Bills  v.  Kinson,  (1  Fost.)  21 
N.  H.  448. 

•  Hall  V.  Tuttle.  2  Wend.  476. 

'Wiswall  V.  Sampson,  14  How.  52;  Noe  v.  Gibson,  7  Paige,  515; 
Robinson  v.  Atlantic  &  Gt.  W.  Ry.  66  Pa.  160;  Parker  v.  Browning,  8 
Paige,  388. 

"Hills  V.  Parker,  111  Mass.  510;  Paige  v.  Smith,  99  Mass.  395;  Leigh- 
ton  V.  Harwood,  111  Mass.  G7.  [The  receiver  of  a  national  bank,  ap- 
pointed under  Section  5242  Rev.  Stat.  U.  S.,  gains  no  title  to  effects  not 
the  property  of  that  bank,  and  such  effects,  though  claimed  by  the 
receiver,  are  liable  to  the  process  of  the  state  court.  Corn  Exchange 
Bank  v.  Blye,  101  N.  Y.  303,  4  N.  E.  635.  If  the  receiver  desires  to  re- 
tain the  possession,  he  must  give  security,  like  any  other  body,  Id.  A 
receiver  of  a  corporation  has  no  power  to  detain  the  goods  of  a  third 
person,  though  found  in  possession  of  the  corporation  at  the  time  of 


GOODS    IN    THE    CUSTODY    OF    THE    LAW.  239 

be  to  apply  to  the  court  under  whose  authority  the  receiver 
assumes  to  act,  and  upon  a  showing  of  the  facts  the  court  will 
unquestionably  make  such  order  as  would  fully  protect  the  rights 
of  the  claimants ;  and  if  he  show  himself  to  be  the  owner,  the 
court  will,  without  doubt,  order  the  property  to  be  surrendered.® 

§  248.  Does  not  lie  at  the  suit  of  a  defendant  in  execu- 
tion ag"ainst  the  sheriff.  By  the  common  law,  and  by  a  provi- 
sion existing  in  the  statutes  of  all,  or  nearly  all,  the  States,  a 
defendant  in  an  execution  or  attachment  cannot  sustain  replevin 
for  goods  which  have  been  taken  from  him  by  virtue  of  process 
to  which  he  is  party  defendant,  unless  the  property  is  by  statute 
exempt  from  seizure.'**  So,  when  the  mortgageor  of  chattels 
brought  replevin  against  the  sheriff  for  seizing  the  mortgaged 
property  on  execution  against  the  mortgagee,  it  appeared  that 
the  judgment  and  execution  was  against  both  the  mortgageor  and 
mortgagee,  in  such  case  neither  could  sustain  replevin  against 
the  officer." 

his  appointment;  and  replevin  lies  against  him  even  without  leave 
of  the  court  of  appointment.  Hills  v.  Parker,  111  Mass.  508.  A 
creditor  who  has  procured  a  lien  on  the  goods  of  his  debtor  will  not  be 
prevented  from  proceeding  with  his  execution  by  the  appointment  of  a 
receiver  for  the  debtor's  property;  and  even  though  he  proceeds  with- 
out leave  of  the  court  of  appointment,  the  receiver  will  not  be  per- 
mitted to  recover  the  goods,  Conley  v.  Deere,  11  Lea,  274.] 

•Parker  v.  Browning,  8  Paige,  388;  In  re  Vogle,  7  Blatchf.  19. 

"Hopkins  v.  Drake,  44  Miss.  622;  Yarborough  v.  Harper,  25  Miss. 
112;  Dearmon  v.  Blackburn,  1  Sneed.  (Tenn.)  390;  Wilson  v.  McQueen, 
1  Head,  (Tenn.)  19;  Orner  v.  Hollman,  4  Whart.  (Pa.)  45;  Kellogg  v. 
Churchill.  2  N.  H.  412;  Ilsley  v.  Stubbs,  5  Mass.  280;  Morris  v.  DeWitt, 
5  Wend.  71;  Melcher  v.  Lamprey,  20  N.  H.  403;  Perry  v.  Richardson, 
9  Gray,  216. 

"Talbot  V.  De  Forest.  3  G.  Greene,  (Iowa,)  586.  [Defendant  in  exe- 
cution cannot  replevy  goods  not  exempt,  though  he  Is  mere  bail,  and 
though  the  sheriff  has  failed  to  exhaust  the  property  of  the  prlnciijal 
as  ref4uired  by  law.  Miller  v.  Hud.son,  114  Ind.  550,  17  N.  E.  122; — even 
though  the  judgment  under  which  the  execution  Issued  was  given  with- 
out prowsa  served  upon  him.  Even  without  a  statute,  goods  taken  In 
execution  cannot  be  replevied,  Howard  v.  Crandall,  39  Conn.  213;  un- 
less the  goods  are  exempt,  Hartlep  v.  Cole,  101  Ind.  458.  An  affidavit 
averring  that  the  goods  were  taken  "  by  execution  Issued  against  plaln- 
tirr  on  a  voiil  juilgmfnt."  Is  vicious.  The  affiant  Is  not  to  dcterMiine  the 
validity  of  the  judgment  and  cannot  question  It  in  his  affi<lavlt.  Wilson 
v.  Mafklln,  7  Nob.  50.  In  MlHslsslppI  replevin  will  not  lit'  for  goods 
taken  under  civil  proccHs,  even  against  a  stranger,  Clark  v.  Clinton,  61 
MISH.  337;   but  generally,  the   nib-  Is  otlieiwlHe.     An  us.slgnee  for  cred- 


140  THE    LAW    OF    REPLEVIN. 

§  249.  Nor  at  the  suit  of  a  grantee  of  such  defendant 
after  seizure.  Neitlier  can  a  g^'antee  of  such  defendant,  after 
the  good.s  were  seized,  su.stain  tlie  action,  as  he  occupies  no  hetter 
position  than  the  defendant."  The  rule  may  therefore  be  stated 
as  general,  that  when  goods,  not  exempt  by  law,  are  taken  from 
the  possession  of  the  defendant  named  in  the  ]>roces.s,  by  virtue 
of  an  execution  regular  on  its  face,  replevin  will  not  lie  at  the 
suit  of  such  defendant.'^ 

§  250.  The  reason  for  the  rule.  The  reason  for  this  rule 
is  apparent  when  it  is  considered  that  if  the  defendant  were  per- 
mitted to  maintain  replevin,  it  would  be  in  his  power  to  prolong 
and  perhaps  defeat  a  valid  olaim,  upon  which  he  has  had  a  full 
opportunity  to  make  his  defense  when  judgment  was  rendered 
against  him  ;  and  this  would  produce  delay  in  the  execution  of  a 
process  which  is  final  in  its  nature.  Statutory  provisions  exist 
in  some  States  which  permit  the  replevying  of  property  attached, 
but  such  proceedings  are  a  part  of  the  attachment  suit,  and  are 
not  affected  by  any  of  the  ordinary  rules  in  this  action." 

§  251.  Qualifications  of  the  rule.  The  execution,  however, 
must  be  a  valid  one,  and  issued  by  comiietent  authority,  as  an  ex- 

Itors  may  replevy  goods  taken  under  execution  against  the  assignor, 
Kingman  v.  Reinemer,  166  Ills.  208,  46  N.  E.  786.  An  order  of  the 
live-stock  sanitary  commission  directed  to  the  sheriff,  commanding  him 
to  seize  certain  horned  cattle  as  infected,  is  in  the  nature  of  an  execu- 
tion and  is  a  sufficient  justification  to  the  officer,  without  proof  of  any 
investigation  or  finding  by  the  commission,  Hardwick  v.  Brookover,  48 
Kans.  609,  30  Pac.  21.  But  plaintiff  in  the  replevin  may  traverse  the 
inspection  and  try  the  question  as  a  question  of  fact;  he  is  not  con- 
cluded by  the  finding  of  the  commission.  Id.  An  execution  reciting  pay- 
ment of  the  judgment  by  one  of  the  judgment  debtors,  and  the  con- 
tribution as  claimed,  is,  notwithstanding  these  .recitations,  a  justifica- 
tion for  removal  thereunder;  the  defendant  cannot  replevy,  Kelso  v. 
Youngren,  86  Minn.  177,  90  N.  W.  316.  An  execution  is  not  void  be- 
cause including  items  of  costs  which  are  not  taxable.  Hall  v.  Bramell, 
87  Mo.  Ap.  285.] 

"Hines  v.  Allen,  55  Me.  115;  Gardner  v.  Campbell,  15  Johns.  401; 
Dunham  v.  Wyckoff,  3  Wend.  280;  Shaw  v.  Levy,  17  S.  &  R.  (Pa.)  102. 

"Hall  V.  Tuttle,  2  Wend.  478;  Judd  v.  Fox,  9  Cow.  262;  Hsley  v. 
Stubbs,  5  Mass.  283;  Thompson  v.  Button,  14  John.  84;  Gardner  v. 
Campbell,  15  Johns.  402;  Mills  v.  IMartin,  19  Johns.  32;  Shaddon  v. 
Knott,  2  Swan,  (Tenn.)  358. 

"Green  v.  Holden,  35  Vt.  315.  The  Kentucky  reports  contain  many 
cases  of  this  nature. 


GOODS  IX  THE  CUSTODY  OF  THE  LAW.       241 

ecution  void  on  its  face  is  no  justification.'^  Also,  in  case  the 
levy  is  void  or  wrongful,  for  any  misconduct  of  the  officer,  the 
defendant  in  the  process  may  take  advantage  of  the  error,  and 
bring  replevin  as  though  he  was  a  stranger  to  it.  When  the 
levy  was  made  on  Sunday,  the  statute  of  the  State  forbidding 
service  on  that  day,  the  levy  was  held  void,  and  the  defendant  in 
the  process  was  permitted  to  sustain  the  action.'"  Or  where  a 
constable  who  has  no  authority  to  execute  a  particular  process 
attempts  to  make  a  levy,  the  levy  is  void."  These  cases  are'  all 
based  upon  the  principle  that  the  taking,  though  under  color  of 
leg*al  proces.s,  was  wi'ongful,  and  afforded  no  i)rotection  to  the 
officer,  even  when  suit  was  brought  by  the  defendant  named  in 
the  process. 

§  252.  Does  not  lie  for  liquors  seized  under  an  act  to  pre- 
vent the  sale  of  intoxicating  beverages.  The  protection 
which  the  law  affords  to  property  in  its  custody  is  governed  by 
rules  which  will  l)e  l)est  understood  by  illustrations,  the  princi- 
ples which  underlie  all  these  being  substantially  the  same,  to- 
wit :  That  when  the  law  has  assumed  control  of  property  for  the 
purpo.se  of  disposing  of  it  between  disputing  claimants,  it  will  not 
suffer  it  to  be  withdrawn  from  its  custody  until  final  disposition 
has  been  made  by  the  court.     Where  liquors  had  been  seized,  and 

"WTiite  V.  Jones,  38  III.  165;  Campbell  v.  Williams,  39  Iowa,  646. 
[Plaintiff  brought  an  action  against  a  bank  to  recover  the  amount  of 
certain  certificates  of  deposit;  the  bank  defended,  on  the  ground  that 
the  certificates  were  in  fact  the  property  of  another.  The  certificates 
having  been  produced  to  the  court,  under  subpoena,  by  the  other  claim- 
ant, the  court  ordered  the  clerk  to  take  them  into  his  custody  and  re- 
tain them  until  the  further  order  of  the  court;  held  that  the  court 
had  no  authority  to  so  impound  the  certificates,  that  the  order  clothed 
the  clerk  with  no  immunity  to  an  action  by  the  true  owner,  and  that 
thf  i)rinciple  that  where  a  court  through  its  receiver  or  officer  has 
gained  control  of  property  In  litigation  its  possession  cannot  be  dis- 
turbed, without  leave  of  the  court,  had  no  application.  Read  v.  Bray- 
ton,  143  N.  Y.  342,  38  N.  E.  261;  and  see  Conley  v.  Deere,  11  Lea,  274. 
Even  where  goods  are  lawfully  in  custody,  it  is  a  matter  of  course  to 
permit  an  action  to  be  brought  by  a  third  i)or6on  ciaiming  rights  which 
cannot  be  adjudged  in  the  pending  action;  or  if  ihc  action  li:is  been  in- 
utituted  by  such  third  porHon  without  i)rlor  iicrnii.ssion,  and  the  conduct 
of  the  pluintifT  lias  not  been  wilful  or  contuniellous.  to  iicrinlt  it  to  pio- 
cee:!.  Read  v.  Drayton,  supra,  dting  Hllla  t-.  I'ai  ker.  111  Mass.  D08.] 

"Pelrce  v.  Hill.  9  Porter.  (Ala.)  151. 

"Conner  v.  Palmer,  13  Met.  302. 
16 


-42  THE    LAW    OF    REPLEVIN. 

were  awaiting  tlie  action  of  the  court,  under  a  process  looking  to 
their  eondenniation  under  a  statute  forbidding  intoxicating  liquors 
to  be  ki'pt  or  sold,  they  could  be  replevied  by  the  owner,'*  and 
the  court  projHM-ly  dismissed  the  action,  on  motion.  Even  if  the 
defendant  had  proved  that  he  had  the  liquor  for  the  lawful  pur- 
pose of  making  vinegar,  it  would  have  been  no  defense  as  against 
the  nioti(Mi  to  dismiss.  If  the  defendant's  jiurpose  was  lawful, 
that  fact  could  be  made  to  appear  in  the  original  proceeding,  but 
the  court  would  not  allow  property  so  seized  to  be  withdrawn 
from  its  custody  at  the  suit  of  the  owner,  until  \[  had  passed  on 
the  question  of  the  seizure.  The  same  rule  was  applied  in  New 
Hampshire,  where  liquors,  having  been  illegally  kept,  had  become 
a  nuisance,  and  were  seized  by  an  officer  under  a  warrant  to  seize 
and  keep  them  until  final  action  of  the  court.  They  were  re- 
garded as  in  the  custody  of  the  law,  and  not  subject  to  be  taken 
upon  a  writ  of  replevin.''  These  cases  proceed  upon  the  ground 
that  when  a  seizure  has  been  made  by  an  ofificer  in  the  execution 
of  his  duty,  the  courts  will  retain  the  possession  of  the  property 
pending  the  inquiry  into  the  propriety  of  the  seizure,  and  will 
not  suffer  a  claimant  to  withdraw  the  property  under  pretense 
that  he  desires  to  contest  the  seizure. 

§  253.  Where  the  seizure  was  under  an  ordinance  which 
had  been  declared  void.  But  where  li(juors  were  seized 
under  a  town  ordinance  for  the  suppression  of  the  sale  of  intox- 
icating liquors,  and  the  ordinance  had  been  held  void  by  a  court 
of  competent  jurisdiction,  the  owner  brought  replevin  and  recov- 
ered.'** 

"Funk  et  al.  v.  Israel,  5  Iowa,  450;  Monty  v.  Arneson,  25  Iowa,  383. 

"State  V.  Barrels  of  Liquor.  47  N.  H.  374.  So  in  Massachusetts,  Allen 
V.  Staples,  6  Gray,  (Mass.)  491. 

"  Sullivan  v.  Stephenson,  62  111.  297.  [Goods  detained  as  the  fruits  of 
a  crime,  and  as  evidence  upon  the  prosecution,  are  in  .custody  of  the 
law  and  cannot  be  replevied,  Simpson  v.  St.  John,  93  N.  Y.  363. 

The  constable  under  warrant  against  certain  persons  charged  with 
keeping  a  tippling  house  in  violation  of'  law,  seized  certjiin  liquors  as 
required  by  statute;  the  statute,  it  seems,  required  the  liquors  to  be 
destroyed  in  case  of  conviction,  but  made  no  prevision  for  notice  to 
third  persons,  and  gave  no  opportunity  to  such  claimant  to  assert  his 
rights;  held,  in  view  of  these  omissions  that  a  third  person,  the  owner 
of  the  goods,  might  replevy  them  from  the  officer,  In  re  Massey,  56 
Kans.  120,  42  Pac.  365.  Goods  alleged  to  have  been  stolen  were,  by  the 
officer,  pursuant  to  an  order  of  the  court,  delivered  to  the  accused  upon 


GOODS    IX    THE    CUSTODY    OF    THE    LAW.  243 

§  254.  Does  not  lie  for  cattle  legally  impounded.  The 
action  does  not  lie  against  a  i)oundniastei'  for  cattle  legally  im- 
pounded, so  long  as  he  retains  them  in  the  custody  of  the  law ; 
but  when  he  removed  them  from  the  lawful  pound  and  put  them 
in  his  own  pasture  or  barn,  and  the  owner  finding  them  there 
took  them,  and  the  poundmaster  re-took  them  ;  hekJ^  that  the 
pound  master  had  lost  his  legal  custody  and  the  owner  could  re- 
cover.-' This,  however,  will  not  preclude  the  owner  from  testing 
the  legality  of  the  seizure  and  impounding  of  his  cattle  in  this 
action.  If  the  owner,  in  such  a  case,  can  show  the  seizure  or  de- 
tention to  be  illegal,  for  example,  suppose  the  pound  master 
should  refuse  to  deliver  the  cattle  upon  demand  after  payment  of 
all  dues  ;  replevin  would  unquestionably  be  a  proper  remedy. 

^  25").  Lies  for  powder  seized  under  an  ordinance  pro- 
hibiting its  introduction  in  large  quantities  into  a  city. 
Although  the  common  council  of  a  city  may  pass  an  ordinance 
prohibiting  the  bringing  of  powder  in  large  quantities  into  the  city, 
and  though  it  may  impose  a  penalty  for  the  viohition,  or  may 
compel  the  removal  of  the  powder,  such  an  ordinance  will  not 
justify  the  council  in  declaring  the  powder  forfeited  or  withhold- 
ing the  possession  from  the  owner,  who  may  bring  replevin  if  it 
be  withheld  from  him." 

§  25G.  Does  not  lie  for  property  taken  on  a  writ  of  re- 
plevin until  after  the  former  case  is  decided.  When  an 
officer  has  taken  property  by  virtue  of  a  writ  of  replevin  for  the 
purpose  of  delivering  it  in  obedience  to  the  mandate,  he  is  re- 
garded as  holding  it  in  the  custody  of  the  law,  and  it  is  not  liable 
to  any  other  replevin  from  him.-'  One  of  the  reasons  which 
seems  to  govern  in  such  cases  is  that  the  writ  of  replevin  com- 

hls  giving  bond  with  surety;  but  the  order  expressly  provided  that 
the  right  of  the  true  owner  should  not  be  imi)aired  by  the  execution  of 
the  bond;  it  was  held  that  the  goods  were  not  in  custody  of  the  law, 
and  the  true  owner  might  maintain  replevin,  Byrne  v.  Byrne,  89  Wis. 
659,  62  N.  W.  413.  The  fact  that  the  Intoxicating  liquors  for  which  the 
writ  of  replevin  has  been  applied  for,  were  seized  by  the  defendant  as 
sheriff  in  a  criminal  prosecution  against  the  plaintiff  in  replevin,  is  no 
reason  why  the  clerk  Khoiild  refuse  the  oifior  of  delivery,  where  the 
reriuirementH  of  the  statute  have  been  comi)lied  with,  Easter  r.  Traylor, 
41  Kans.  493.  21   Pac.  606] 

"  Bills  V.  Kinson,  1  Fost.   (21  .\,  H.)  449;  Cate  v.  ('ate,  1 1  .N.  11.  211. 

"Cotter  V.  Doty,  5  Ohio.  39G. 

"Contra,  see  Hagan  i-.  Deuell,  24  Ark.  216. 


244  THE    LAW    OF    KI<]I>LKV1N. 

mantis  tlie  oflBcer  to  seize  tlie  identical  property  and  make  a  par- 
ticular disposal  of  it ;  and  while  the  officer  is  acting  in  obedience 
to  tliat  coiniiiand  tlie  law  will  not  permit  any  other  party  to 
interfere  and  prevent  him  from  doing-  what  the  writ  directs  him 
to  do.-* 

§  257.  The  distinction  between  a  writ  of  replevin  and 
an  execution,  or  attachment.  There  is  a  marked  distinction 
to  be  observed  between  goods  taken  by  an  officer  on  an  execu- 
tion, or  attachment,  and  goods  taken  on  a  writ  of  replevin.  In 
the  latter  case  the  identical  goods  are  in  the  custody  of  the  laAv, 
and  are  before  the  court-to  be  disposed  of  as  it  shall  see  proper  ; 
and  the  proceeding  is  so  far  in  rem  that  the  goods  cannot  be 
seized  upon  any  process  until  the  court  shall  have  taken  action* 
If,  therefore,  a  party  finds  his  goods  in  the  hands  of  an  officer 
upon  a  valid  writ  of  replevin,  and  that  they  have  been  taken 
from  the  possession  of  the  defendant  named  in  the  writ,  his  rem- 
edy is  by  an  application  to  the  court  to  be  permitted  to  come  in 
and  set  up  his  claim  to  them,  and  not  by  an  independent  replevin. 
"Whereas,  if  goods  are  wrongfully  seized  by  an  officer  upon  ex- 
ecution or  attachment  it  cannot  be  said  to  confer  any  lien  on 
them,  or  to  bear  any  resemblance  to  a  proceeding  in  rem}'-' 

§  258.  Cross-replevins  not  allowed.  Instances  have  oc- 
curred where  the  defendant  in  replevin  has  sought  to  forestall 
the  action  by  another  replevin  at  his  own  suit  for  the  same  goods. 
This  is  in  the  nature  of  a  cross-replevin,' v/hich  the  law  does  not 
permit.-*     Neither   can  a  grantee   of  the   defendant,  after   suit 

"Sanborn  v.  Leavitt,  43  N.  H.  473;  Lowry  v.  Hall,  2  W.  &  S.  (Pa.) 
131;  Bell  v.  Bartlett,  7  N.  H.  188;  Maloney  v.  Griffin,  15  Ind.  214;  Wil- 
lard  V.  Kimball,  10  Allen,  211;  Shipman  v.  Clark,  4  Denio,  446;  Foster 
V.  Pettibone,  20  Barb.  350;  Stimpson  v.  Reynolds,  14  Barb.  506;  Ilsley  v. 
Stubbs,  5  Mass.  280;  Morris  v.  De  Witt,  5  Wend.  71;  Rhines  v.  Phelps, 
3  Gilm.   (111.)  455;  Spring  v.  Bourland,  6  Eng.   (Ark.)   658. 

"  Watkins  v.  Page,  2  Wis.  95.  Property  in  the  hands  of  the  sheriff 
by  virtue  of  a  writ  of  replevin  is  in  the  custody  of  the  law  and  is  not 
liable  to  a  second  distress.  Milliken  v.  Seyle,  6  Hill,  623;  Gilbert  v. 
Moody,  17  Wend.  358;  Lovett  v.  Burkhardt,  44  Pa,  St.  174. 

^'Hagan  v.  Deuell,  24  Ark.  216;  Powell  v.  Bardlee,  9  Gill  &  .Johnson, 
220;  Shaw  v.  Levy,  17  Serg.  &  R.  103:  Maloney  v.  Griffin,  15  Ind.  213; 
Dearmon  v.  Blackburn,  1  Sneed,  (Tenn.)  390.  When  property  is  taken 
by  writ  of  replevin  the  defendant  cannot  retake  it  by  second  writ  while 
the  first  is  pending.  Ilsley  v.  Stubbs,  5  Mass.  280;  Morris  v.  De  Witt, 
5  Wend.  71;  Sanborn  v.  Leavitt,  43  N.  H.  473;  Belden  v.  Laing,  8  Mich. 


GOODS    IN    THE    CUSTODY    OF    THE    LAW.  245 

brought.  The  rights  of  all  parties  can  be  determined  in  the  first 
action.     This  is  now  a  statutory  provision  in  many  States." 

§  259.  The  same.  Illustration.  A.  replevied  property  and 
obtained  possession  of  it  without  there  being  service  on  defend- 
ants. The  proceeding,  except  the  issue  of  the  writ,  was  set 
aside  by  the  court.  The  defendant  in  first  sued  out  replevin 
against  plaintiff  for  same  property  ;  defendant  in  the  second  suit 
pleaded  general  issue  (non  cejv't),  and  gave  notice  that  /le  would 
prove  the  pendency  of  the  first  suit,  etc.  Jle/d,  that  as  the  pro- 
ceedings in  the  first  suit  were  set  aside,  that  taking  was  the  same 
as  though  it  had  been  without  any  writ,  and  in  such  case  the 
second  replevin,  though  by  the  defendant  from  the  plaintiff  in 
the  former  suit,  is  not  a  cross-replevm.^* 

§  2G0.  The  sheriff  charged  with  the  execution  of  process 
must  obey  it  at  his  peril.  It  is  an  old  and  well  established 
rule  that  a  sheriff  charged  with  the  execution  of  a  process  must 
obey  its  mandates  at  his  peril.     Where  a  writ  of  execution  or 

503;  Clark  v.  West,  23  Mich.  243;  Lowry  v.  Hall,  2  W.  &  S.  (Pa.)  131; 
Hagan  v.  Deuell,  24  Ark.  216.  [The  owner  cannot  bring  replevin 
against  one  who  has  obtained  the  goods  in  a  suit  in  replevin  against 
the  owner's  bailiff;  the  fact  that  the  parties  are  different,  is  imma- 
terial, Larsen  v.  Nichols,  62  Minn.  256,  64  N.  W.  553;  Ford  v.  Biishor. 
48  Mich.  534;  12  N.  W.  690;  but  see  contra,  Westbay  v.  Milligan,  74  Mo. 
Ap.  179.  And  a  cross-replevin  cannot  be  maintained  by  joining  other 
parties,  or  omitting  parties,  so  long  as  the  right  asserted  is  identical, 
Fisher  v.  Busch,  64  Mich.  180,  31  N.  W.  39;  Beers  v.  Wuerpul,  24  Ark. 
272;  and  the  defendant  cannot,  pending  the  action,  by  a  sale  of  the 
goods,  confer  upon  another  the  right  to  institute  cross-replevin,  Hines 
V.  Allen,  55  Me.  114.  Plaintiff,  to  whom  goods  have  been  delivered 
under  replevin  in  a  state  court,  cannot  be  deprived  of  them  by  a  cross- 
replevin  in  the  federal  court;  return  will  be  awarded  so  that  the  con- 
troversy may  be  litigated  in  the  state  court,  Williams  v.  Morrison, 
32  Fed.  177.  The  first  suit  may  be  pleaded  in  abatement  of  the  second, 
or  in  bar;  but  the  writ  cannot  be  quashed  on  motion,  Fisher  v.  Mar- 
quette Circuit  Judge.  58  Mich.  450,  25  N.  W.  460.  But  if  the  officer 
replevy  and  deliver  to  the  plaintiff  goods  not  named  In  the  writ,  de- 
fendant may  maintain  replevin  for  these,  Warren  x\  Lcland,  2  Barb. 
613.  If  the  goods  are  taken  by  defendant  from  poHsesslon  of  the  plain- 
tiff, return  will  not  be  awarded;  the  defendant  prevailing  In  such  case 
refovers  only  his  cohIh.  ] 

"Hines  »^  Alen,  55  Me.  115.  A  second  suit  brought  by  the  defendant 
in  the  first  suit  and  his  (tartner  against  the  sam«-  plaintiff  Is  a  cross- 
replevin.     Beers  v.  Wu»'rpul.  24  Ark.  273. 

"Smith  I.  Snyder.  15  Wend.  324. 


246  THE    LAW    OF    REPLEVIN. 

attacliment  directs  him  to  seize  upon  the  goods  of  A.  he  must 
assume  the  responsibility  of  determining  what  goods  l)elong  to 
A. ;  and  if  he  seize  upon  the  goods  of  B.  tlie  writ  is  no  protection 
to  liini  in  so  doing,  and  he  becomes  liable  to  B.  in  trespass  or 
replevin  at  his  election.^  If  the  seizure  was  made  with  a  delib- 
erate wrongful  intention  on  the  part  of  the  officer  to  seize  the 
goods  of  one  who  was  in  no  way  connected  with  the  writ,  no  one 
would  for  a  moment  atten)])t  to  justify  such  a  seizure;  and  if  it 
was  made  by  mistake  it  would  be  equally  al)surd  to  contend  that 
the  blunder  of  an  officer  could  deprive  the  r6al  owner  of  his  goods, 
or  of  any  of  his  riglits  in  them.^"  Even  when  the  officer  does  not 
remove  articles,  a  levy  by  him  may  become  a  tresixxss  as  against 
the  real  owner,  and  render  him  liable  under  that  action  ;  or  the 
owner  may,  if  a  stranger  to  the  process,  maintain  replevin,  pro- 
vided his  possession  is  taken  from  him/' 

§  261.  The  same.  I'his  question  was  considered  in  a  late 
case  in  Illinois,  where  plaintiff  in  attachment,  who  had  prose- 
cuted his  suit  to  judgment,  asked  a  process  against  the  sheriff  to 
compel  him  to  sell  the  attached  property.  The  sheriff  replied 
that  it  had  been  taken  from  him  by  a  writ  of  replevin,  describing 
it.  "  The  question  then  occurs,"  said  Mr.  Justice  Scholfield,  in 
delivering  the  opinion,  "  is  replevin  a  proper  remedy  against  a 
sheriff  who  has  levied  a  writ  of  attachment  against  one  person 
upon  the  property  of  another,  at  the  instance  of  tlie  party  whose 
property  is  thus  wrongfully  levied  upon  ?  It  seems  well  settled 
that  this  remedy  w'ould  be  appropriate  in  such  cases,  aside  from 
anything  to  be  found  in  our  statute."  '^ 

="Ackworth  v.  Kemp,  Doug.  (Eng.)  40;  Ralston  v.  Black,  15  Iowa,  47. 

^Stewart  v.  Wells,  6  Barb.  79;  Buck  v.  Colbath,  3  Wall.  (U.  S.)  334; 
Allen  V.  Crary,  10  Wend.  349;  Shipman  v.  Clark,  4  Denio,  447;  Hall  v. 
Tuttle,  2  Wend.  476;  Ilsley  v.  Stubbs,  5  Mass.  280;  Phillips  v.  Harriss, 
3  .1.  J.  Marsh,  (Ky.)  121;  Caldwell  v.  Arnold,  8  Minn.  265;  Bradley  v. 
Holloway,  28  Mo.  150;  Drake  on  Attachments,  §  223;   Brown  v.  Bissett, 

1  Zab.  21,  (N.  J.  L.)  268.  Where  an  officer  improperly  levies  on  prop- 
erty which  does  not  belong  to  the  defendant  in  his  process,  the  owner 
may  maintain  replevin.  Gimble  v.  Ackley,  12  Iowa,  27.  See,  also, 
Phillips  V.  Harriss,  3  J.  J.  Marsh,  (Ky.)  124;  Smith  v.  Montgomery, 
5  Iowa,  370;  Wilson  v.  Stripe,  4  Green.  551;  Miller  v.  Bryan,  3  Iowa, 
58;   L.  &  Portland  Canal  v.  Holborn,  2  Blackf.  267;    Chinn  v.  Russell, 

2  Blackf.  172;  Ralston  v.  Black,  15  Iowa,  47. 
"  Gallagher  v.  Bishop,  15  Wis.  276. 

»  Samuel  v.  Agnew,  80  111.  554.     See,  also,  Ralston  v.  Black,  15  Iowa, 


GOODS  IN  THE  CUSTODY  OF  THE  LAW.       247 

§  26"2.  Replevin  lies  for  goods  wrongfully  sold  by  sheriff 
on  execution.  AVhere  the  sheritl'  seizes  and  sells  goods  not  the 
property  of  the  defendant  in  execution,  such  sale  passes  no  title 
to  the  purchaser,  and  the  owner  may  sustain  replevin  against 
him  ;  and,  althougli  it  had  been  held  that  no  demand  is  necessary, 
the  safer  way  would  be  to  make  it  before  suit." 

§  203.  Distinction  between  replevin  for  the  goods  and  an 
action  against  the  officer  as  a  trespasser.  There  is  a  dis- 
tinction to  be  observed  in  this  connection,  between  an  action 
against  the  officer  in  trespass,  and  an  action  for  the  goods.  An 
execution  regular  on  its  face,  issued  by  a  court  of  competent 
jtirisdiction,  will  protect  an  officer  in  an  action  of  trespass  brought 
against  him  V)y  the  defendant  named  in  the  Avrit,  but  it  cannot  be 
made  the  basis  of  a  claim  of  right  to  the  property,  without  proof 
of  a  valid  judgment  to  sustain  it.-^* 

§  2;U.  Writ  of  replevin.  When  and  how  far  a  protection 
to  the  officer  serving  it.  A  writ  of  replevin,  valid  on  its  face, 
is  a  j)erfect  protection  to  the  officer  in  taking  the  goods  from  the 
possession  of  the  defendant  therein  named."  That  is,  it  affords 
the  officer  a  definite  and  limited  protection  so  long  as  he  proceeds 
within  the  authority  wliieh  the  law  confers  upon  him  ;  but  be- 
yond tliat  the  law  does  not  in  any  way  shelter  him.''*  When, 
therefore,  an  officer,  in  pursuance  of  the  command  of  a  writ  of 
replevin  issued  from  a  competent  court  and  valid  on  its  face,  takes 
possession  of  the  property,  from  the  defendant  named  in  tlie  writ* 
he  is  not  liable  to  the  defendant,  even  though  the  latter  may  be 
the  real  owner  of  the  propei-ty,  and  the  replevin  suit  be  deter- 
mined in  his  favor.  The  failure  of  the  plaintiff  in  r(>i)U'vin  to 
make  out  his  ca.scj  cannot  render  the  officer  liable  to  the  defendant 

48;  Chinn  r.  Russell,  2  Blackf.  172;  Mogee  v.  nrlrni.  3  WriRht,  (Pa.) 
50;  Woodruff  v.  Taylor.  20  Vt.  CG;  Barber  v.  The  Bank,  9  Conn.  407; 
Allen  on  Sheriff,  272;  Gardner  v.  Campbell.  15  John.  401;  .ludd  t'. 
Fox,  9  Cow.  259;  Louisville  &  Portland  Cunal  Co.  v.  Holborn.  2  Blackf. 
(Ind.)    267. 

"Hicks  V.  Britt,  21  Ark.  422;  Coombs  v.  Gorden.  59  Me.  Ill;  Critten- 
den V.  Llngie,  14  Ohio  St.  182. 

"Adams  v.  Hubbard,  30  Mich.  104;  Underhlll  r.  Rclnor,  2  Hilton. 
(N.  Y.)  319;  Bcaih  v.  Botsford.  1  Doug.  (.Mich.)  199;  LeUoy  v.  Kast 
Sag.  Uy..  18  .Mich.  233;  Karl  v.  Camp,  IG  Wend.  5(J3. 

"Clark  r.  Norton.  0  .Minn.  412;  V.  S.  DiHt.  Court  Western  Dlst. 
Tenn.;    Waddy  Thompson,  ex  parte,  15  Am.  Law   Uck.  522. 

'*  Whitney  v.  .JcnklnKon.   3   Wis.   40S. 


248  THE    LAW    OF    REPLEVIN. 

in  diiinages."  But  the  protection  afforded  the  officer  does  not  by 
any  means  extend  to  the  party  wiio  has  procured  the  writ  to 
issue.'" 

§  265.  Whether  the  writ  authorizes  a  seizure  of  the 
goods  from  a  stranger.  Whether  the  writ  will  i)rotect  the 
ortieer  in  taking  tlie  goods  from  the  jmssession  of  one  who  is  a 
stranger  to  it,  is  a  question  upon  which  there  is  some  difference 
of  opinion.  Tiie  writ  of  replevin  commands  the  officer  to  take 
certiiin  articles  which  are  particularly  descrihed.  In  ca.se  these 
articles  are  found  in  the  hands  of  the  defendant  named  in  the 
writ,  no  question  can  arise  ;  but  if  they  are  found  in  the  hands  of 
one  who  is  not  a  party  to  the  writ,  but  who  has  possession  and 
claims  to  own  them,  the  case  presents  more  difficulties.'*  In  New 
York,  before  the  code  was  passed,  the  form  of  the  writ  required 
the  officer  to  take  the  property  if  it  could  be  found  in  the  county, 
and  provisions  were  made  for  the  arrest  of  the  defendant  in  case 
the  goods  were  not  found.  Under  such  a  statute  the  officer  was 
not  liable  as  a  trespasser  for  seizing  the  goods  wherever  found.*" 
But  under  a  subsequent  statute,  it  was  held  that  an  officer  was 
not  pi-otected  by  a  writ  of  replevin  in  taking  property  from  a 
third  person  claiming  to  own  it,  even  though  the  goods  were  the 
specific  chattels  which  the  writ  directed  him  to  take  ;*'  and  this 

"Williard  v.  Kimball,  10  Allen.  (Mass.)  211;  Weinberg  v.  Conover, 
4  Wis.  803;  Shipman  v.  Clark,  4  Denio,  446;  Stimpson  v.  Reynolds, 
14  Barb.  506;  Foster  v.  Pettibone,  20  Barb.  350;  Watkins  v.  Page,  2 
Wis.  97. 

'^  Ex  parte  Waddy  Thompson,  15  Am.  Law  Reg.  522. 

"The  ancient  case  of  Hallett  v.  Byrt,  Carth.  380,  says:  "There  is 
a  difference  between  replevin  and  other  process.  In  replevin  the  officer 
is  expressly  commanded  to  take  property,  but  in  an  execution  he  is 
commanded  to  take  the  goods  of  the  party,  which  the  officer  serving 
must  do  at  his  peril."  S.  C,  1  Ld.  Raym.  218— Skinn.  674.  (The 
several  reports  do  not  agree.  I  cite  the  report  as  in  Carth.)  This 
case  has  been  cited  and  approved  in  many  modern  cases.  Shipman  v. 
Clark.  4  Denio,  447;  Watkins  v.  Page,  2  Wis.  97;  Spencer  v.  M'Gowen, 
13  Wend.  256;  Silsbury  v.  McCoon,  4  Denio,  332;  Griffith  v.  Smith,  22 
Wis.  647;  Battis  v.  Hamlin,  22  Wis.  669;  Foster  v.  Pettibone,  20  Barb. 
350;   Shaw  v.  Coster,  8  Paige,    (X.  Y.)    344. 

"King  V.  Orser,  4  Duer.  436.  See  Foster  v.  Pettibone,  20  Barb.  350; 
Shipman  v.  Clark,  4  Denio,  446.  Consult  Buck  v.  Colbath.  3  Wall. 
(U.  S.)   334. 

*'  Stimpson  v.  Reynolds,  14  Barb.  506. 


GOODS    IX    THE    CUSTODY    OF    THE    LAW.  249 

doctrine  is  fully  sustained  by  subsequent  cases.*'  Both  these 
cases  hold  that  the  writ  is  no  protection  to  an  officer  in  taking 
goods  from  the  possession  of  one  not  a  party  to  it. 

§  266.  The  same.  One  of  the  best  considered  cases  on  this 
subject  is  found  in  Ohio.  Tlie  conclusion  there  reached  is,  that 
an  officer  has  no  right  to  take  goods  described  in  a  writ  of  re- 
plevin from  the  possession  of  a  person  not  named  in  the  process. 
It  is  important  to  observe,  says  the  court,  in  substance,  that  Avhile 
the  rights  of  the  defendant  are  sedulously  guarded  by  a  bond  re- 
quired from  the  plaintiff,  no  guard  or  protection  is  afforded  to 
the  rights  of  third  persons,  and  that  unlike  proceeding  strictly  in 
rem,  as  in  admiralty  or  chancery,  where  the  officer  is  directed  to 
take  possession  of  specific  property,  that  the  rights  of  the  several 
claimants  may  be  ascertained,  the  property  is  not  retained  in  the 
possession  of  the  officer,  but  is  delivered  to  the  claimant,  and  no 
provision  is  made  for  third  persons  to  come  in  and  assert  their 
claims.'"  A  very  similar  line  of  reasoning  was  followed  in  IMaine, 
where  the  court  held  that  replevin  could  only  be  maintained 
against  the  person  having  possession  of  the  goods."  But  there  is 
no  authority  for  saying  that  bare  possession,  by  a  stranger,  of  the 
goods  described  in  the  writ  ought  to  deter  the  sheriff'  from  mak- 
ing the  delivery,  when  it  is  apparent  that  they  really  belong  to 
the  defendant  in  the  process.  The  sound  discretion  of  the  officer 
is  called  largely  into  use.  If  the  property  described  in  the  writ 
has  been  recently  in  the  hands  of  the  defendant  named,  and  he, 
for  fraudful  purposes,  puts  it  in  the  hands  of  another,  in  antii'ipa- 
tion  of  the  writ,  and  for  the  purpose  of  defeating  it,  such  facts 
would  probably  go  far  to  justify  the  officer  in  seizing  the  goods  from 
such  third  party.  If,  however,  tlie  goods  had  never  been  in  the 
possession  of  the  defendant  in  the  writ,  but  had  for  a  long  jteriod 
been  in  the  hands  of  another  claiming  to  own  them,  the  offieer 
would  unquestionably  be  justified  in  refusing  to  dispossess  such 
thirfl  party  under  a  writ  in  wliich  he  was  not  nanierl.  If  he  as- 
sume to  serve  the  writ  he  nmst  show  that  the  goods  were  actually 
the  property  of  the  defendant  named  in  the  process,**  and  nnist 

"BulllB  V.  MontBomery,  50  N.  Y.  353;  Otis  r.  Williams.  7o  N.  V. 
208. 

"State  V.  JennlnKH.  H  Ohio  St.  73. 

"RaniHdell  r.  liuswell,  54  .M«'.  546.  See  Wllllard  v.  Kimball,  10 
Allen.   201. 

••Hllllard   on   TortH,    Vj\;    Crosby   v.    Uaker,   0    Alli-n.    (MaHs.)    295; 


£50  THE    LAW    OF    REPLEVIN. 

take  tlie  risk  of  a  suit  for  trespass,  against  wliich  he  ought,  when 
liis  act  has  been  in  good  faith,  to  l)e  fully  indemnified  by  the  party 
in  whose  interest  he  acts. 

§  2G7.  Writ  of  retorno  authorizes  seizure  only  from  the 
person  named.  Wlien  a  writ  of  n'fonto  issues,  the  sheriff  can- 
not take  the  i)roi)City  from  any  other  i)erson  than  the  one  named 
in  the  writ/" 

§  268.  Replevin  lies  for  exempt  property  wrongfully 
seized.  There  exists  in  many,  if  not  ;ill  the  States,  statutory 
provisions  exempting  a  certain  amount  in  value  of  property,  or 
certain  specific  articles,  from  levy  and  sale  ujion  execution.  As 
to  such  property,  the  rule  is,  that  notwithstanding  there  may  be 
a  judgment  and  execution  against  the  defendant,  valid  in  all  re- 
spects, and  suflBcient  to  authorize  the  seizure  of  property  of  the 
debtor  not  exempt ;  as  to  exempt  property,  he  is  l)y  law  privileged 
to  retain  it,  notwithstanding  the  execution ;  and  if  an  officer,  dis- 
regarding such  exemption,  seize  upon  the  property,  the  debtor 
may  assert  his  right  in  replevin  for  the  goods,  or  in  an  action 
against  the  officer  for  their  value.^' 

Commonwealth  v.  Kennard,  8  Pick.  133;  Brush  v.  Fowler,  30  111.  59; 
Jansen  v.  Acker,  23  Wend.  480;   Perkins  v.  Thornburg,  10  Cal.  189. 

**Lear  v.   Montross,   50   111    509. 

*•  Wilson  V.  McQueen,  1  Head.  (Tenn.)  17;  Bean  v.  Hubbard,  4  Cush. 
86.  A  non-resident  cannot  assert  this  privilege.  Newell  v.  Hayden,  8 
Iowa,  140;  Sims  v.  Reed,  12  B.  Mori.  53;  Moseley  v.  Andrews,  40  Miss. 
55;  Wilson  v.  McQueen,  1  Head.  (Tenn.)  IG;  Elliott  v.  Whitmore,  5 
Mich.  532;  Wilson  v.  Stripe,  4  G.  Greene,  (Iowa,)  551;  Lynd  v.  Picket, 
7  Minn.  184;  Douch  v.  Rahner,  61  Ind.  64.  Dental  tools  held  mechanical 
tools,  and  exempt  as  such.  Maxon  v.  Perrott,  17  Mich.  333.  Whether 
the  articles  claimed  as  tools  are  necessary  as  tradesman's  tools,  and 
for  that  reason  exempt,  is  a  question  for  the  jury  to  determine.  A 
judgment  and  order  to  sell  exempt  property  is  no  bar  to  an  action 
of  replevin;  but  the  replevin  of  the  property  will  not  avoid  the  judg- 
ment.    Wilson  V.  Stripe,  4  G.  Greene,   (Iowa,)   551. 

Note  XV.  Exempt  Goods. — Goods  exempt  by  law  from  execution 
may  be  replevied  by  the  debtor,  in  Florida,  Allen  v.  Ingram,  39  Fla.  239, 
22  So.  651;  in  South  Dakota,  Linander  v.  Longstaff,  7  S.  D.  157,  63  N. 
W.  775;  in  North  Dakota,  Wagner  v.  Olson,  3  N.  D.  69,  54  N.  W.  286; 
in  Nebraska,  Eikenbary  v.  Clifford,  34  Neb.  607,  52  N.  W.  377;  in 
Arkansas,  Mills  v.  Pryor,  65  Ark.  214,  45  S.  W.  350. 

Not  by  defendant  in  the  execution,  in  Vermont.  Prescott  v.  Starkey, 
71  Vt.  118,  41   Atl.   1021. 

Where  the  statute  forbids  the  husband  to  mortgage  exempt  goods 
■without  the  wife's  signature,  and  allows  her  to  sue  for  such  exempt 


GOODS    IN    THE    CUSTODY    OF    THE    LAW.  251 

§■  269.  The  aid  of  the  statute  must  be  invoked.  An 
officer  with  execution  is  not  bound  to  consult  with  the  execution 

goods,  as  if  they  were  her  separate  property,  the  husband  cannot 
replevin  them  from  the  wife.  Smith  v.  Smith,  52  Mich.  538.  18  N.  W. 
347.  Exempt  goods,  of  the  wife  taken  on  execution  against  the  husband 
may  be  replevied.  Sherron  r.  Hall,  4  Lea,  498.  An  officer  is  not  a 
trespasser  for  levying  upon  goods  which  may  turn  out  to  be  exempt. 
Settles  V.  Bond,  49  Ark.  114,  4  S.  W.  286. 

One  who  has  come  to  the  state  to  remain  is  a  resident  and  entitled 
to  the  exemption.  Chesney  v.  Francisco,  12  Neb.  626,  12  N.  W.  94. 
In  Michigan  the  exemption  is  given  to  the  individual;  a  partnership 
cannot  maintain  an  action  based  upon  a  claim  of  exemption.  Gottes- 
man  r.  Chipman,  125  Mich.  CO,  83  N.  W.  1026,  citing  Russell  v.  Lennon, 
39  Wis.  570;  Rogers  v.  Raynor,  102  Mich.  473,  60  N.  W.  980. 

Where  the  exemption  is  not  specific,  e.  g.,  "  other  goods  to  the  value 
of,  etc.,"  the  debtor  must  make  his  claim  to  the  exemption  when 
notified  by  the  officer  of  the  levy,  or  within  a  reasonable  time  there- 
after, otherwise  the  exemption  is  waived.  Zielke  v.  Morgan,  50  Wis. 
5G0,  7  N.  W.  651.  Provisions,  when  levied  upon  by  the  officer,  de- 
fendant, were  kept  in  plaintiff's  basement,  both  for  the  use  of  his 
family  and  for  sale;  none  of  them  were  set  apart  for  use  before  the 
levy,  nor  did  plaintiff,  after  the  levy,  claim  any  of  them  as  exempt. 

The  officer  had  no  knowledge  that  they  were  kept,  otherwise  than 
for  sale.  Held  they  were  not  exempted  under  the  statute  as  "  provi- 
sions necessary  ....  and  intended  for  the  use  of  the  family,"  and 
that  the  officer  was  not  liable  in  trover.  Nash  v.  Farrington,  4  Allen, 
157. 

The  statute  required  the  debtor,  desiring  to  avail  himself  of  the 
exemption  of  "other  personal  property"  not  to  exceed,  etc,  to  serve 
upon  the  officer  a  schedule  of  all  his  property,  and  provided  that 
property  not  included  in  the  schedule  "  shall  not  be  exempt,"  Held, 
that  failure  to  include  in  the  schedule  all  the  debtor's  property,  had 
no  other  consequence  than  that  prescribed  by  the  statute.  Wagner  v. 
Olson,  3  N.  D.  C9,  54  N.  W.  286.  Where  the  statute  requires  a  debtor, 
proposing  to  insist  upon  his  exemption,  to  file  a  schedule  of  his  prop- 
erty, specifying  the  particular  goods  which  he  claims  as  exempt,  the 
debtor  failing  to  pursue  the  statute  waives  his  right.  Chambers  r. 
Perry,  47  Ark.  400,  1  S.  W.  700;  Settles  v.  Bond.  49  Ark.  114,  4  S.  W. 
286.       Replevin  will  not  lie  until  the  schedule  is  filed.     Id. 

In  IlllnoiH,  the  debtor  may  claim  as  exempt  necessary  ai)parel, 
bibles,  school  books,  and  family  jilctures.  The  head  of  a  family  may 
f'Xempt  four  hundrccl  dollars  In  value  of  other  property  to  be  selected 
by  him;  but  to  avail  himself  of  the  statutory  privilege  he  must 
schedule  all  his  personal  property.  Including  money  on  hand,  and 
bills  receivablf;  and  aftf-r  all  arc  rluly  appraised  ho  may  make  his 
seU'ctlon.  Woo(H)iiry  f.  Tutllf.  26  Ills.  Ap.  211.  Thi"  «'xeinptlon  Is  a 
prlvlk'K*;    uraritcfl    by    hlalutc.    and    the    terms   of   the   statute    must    be 


1252  THE    LAW    OF    REPLEVIN. 

debtor  as  to  what  property  is  exempt,  hut  ht;  may  seize  and  pro- 
ceed to  sell  any  or  all  the  dehtor's  ])r()j)orty  upon  which  he  can 

complied  with.  Kahn  v.  Hayes,  22  Ind.  Ap.  182,  ns  N.  E.  430.  If  the 
contrary  does  not  appear  it  will  be  presumed  that  a  debtor  claims  the 
exemptions  to  which  he  is  entitled.  Towne  v.  Leidle,  10  S.  D.  460,  74 
N.  W.  232.  One  who  asserts  title  to  goods,  against  an  officer  levying 
under  execution  against  a  third  person,  by  virtue  of  a  chattel  mortgage 
from  such  third  person,  and  the  exempt  character  of  such  goods,  must, 
where  the  statute  requires  a  schedule  to  establish  such  exemption, 
show  such  schedule  and  claim  of  exemption,  made  to  the  officer  against 
the  particular  levy  under  which  the  officer  holds.  A  schedule  made 
as  against  a  previous  levy  under  a  different  writ  will  not  avail. 
Holler  V.  Coleson,  23  Ills.  Ap.  324. 

The  statute  provided  that  goods  to  the  value  of  one  thousand  dollars, 
of  any  person,  shall  after  his  death  be  "  exempt  from  the  payment 
of  his  debts,  if  he  leaves  a  widow  surviving  him,"  and  that  it  shall 
be  the  duty  of  the  administrator  to  "  permit  said  widow  to  select  the 
property  exempt  from  the  administration;  and  if  she  fails  to  make 
such  selection  then  three  disinterested  persons  to  be  selected  by  the 
probate  judge  must  make  such  selection,"  "  and  provided,  further, 
that  such  property  vests  in  such  widow."  The  husband  died,  and 
the  wife  survived  him  only  four  days;  an  administrator  was  appointed 
upon  the  estate  of  each.  The  personal  goods  of  the  husband  amounted 
to  less  than  one  thousand  dollars,  and  the  whole  amount  was  applied 
by  his  administrator  to  the  payment  of  his  debts.  No  claim  of  the 
exemption  was  made  by  the  widow's  administrator;  and  that  estate 
was  closed  and  tne  administrator  discharged.  Held,  that  no  title  vested 
in  an  administrator  de  botiis  non  of  the  widow  subsequently  ap- 
pointed; that  the  statute  did  not,  without  a  selection,  vest  anything 
in  the  widow,  and  that  her  administrator  de  bonis  non  could  not  main- 
tain trover  against  the  husband's  administrator,  for  failing  to  deliver 
the  personalty  of  that  intestate  to  appraisers  whom  he  had  procured 
to  be  appointed.  Tucker  v.  Henderson's  Admr.,  63  Ala.  280.  Where 
the  statute  makes  an  exemption  for  the  benefit  of  the  family,  the  hus- 
band may  assert  it,  though  the  goods  are  the  property  of  the  wife  and 
taken  in  execution  against  her.  Starrett  v.  Deerfield,  40  Neb.  846,  59 
N.  W.  352,  following  Hamilton  v.  Flemming,  26  Neb.  240,  41  N.  W.  1002. 
The  husband  had  left  his  family  and  gone  away,  as  it  was  said  to 
avoid  his  creditors;  the  family  had  broken  up  the  household,  and 
were  moving  to  the  home  of  the  wife.  Held,  notwithstanding  the 
husband's  absence,  he  was  entitled  to  the  statutory  exemption  in  favor 
of  a  householder;  "  and  that  the  wife  could  not  waive  it.  Woodward 
V.  Murray,  18  J.  R.  400.  The  statute  which  imposes  upon  the  wife  the 
duty  of  maintaining  the  husband,  in  case  of  his  disability,  confers  also 
by  implication  the  right  to  claim  an  exempton  from  execution,  of 
personal  property,  the  fruit  of  her  own  labor,  Linander  v.  Longstaff, 
7   S.   D.   157,  63   N.   W.   775.     The   wife  and   minor  children   may,  the 


GOODS    IN    THE    CUSTODY    OF    THE    LAW.  253 

lay  his  hands;*®  and  if  the  debtor  desires  the  protection  of  the 
statute,  he  must  invoke  its  aid.     It  does  not  operate  unless  its 

•■'Twinam  r.  Swart.  4  Lans.   (N.  Y.)   263. 

husband  being  confined  in  jail,  maintain  a  possessory  warrant  against 
one  who  has  unlawfully  seized  an  animal  exempt  by  statute.  Tucker  v. 
Edwards,  71  Ga.  603.  Chattels  exempted  to  the  family  may  be  the 
property  of  either  spouse,  or  community  property.  McClelland  v. 
Barnard.  Tex  Civ.  Ap.  81  S.  W.  591.  Under  the  statute  of  Nebraska 
the  claim  of  exemption  may  be  made  at  any  time  before  sale,  Chesney 
V.  Francisco.  12  Neb.  626,  12  N.  W.  94;  Crans  v.  Cunningham,  13  Neb. 
204,  13  N.  W.  176.  Where  the  separate  articles  levied  upon  are  dis- 
tinguishable and  separable,  the  doctrine  of  Nash  v.  Farrington,  4  Allen, 
157,  has  no  application;  although  the  debtor  fail  to  claim  the  ex- 
emption it  is  the  duty  of  the  officer  to  leave  the  number  of  each  article, 
to  which,  under  the  statute,  the  debtor  is  entitled,  Id.  An  exemption 
for  the  sustenance  of  animals  does  not  take  effect  if  the  debtor  has 
no  such  animals.  King  v.  Moore,  10  Mich.  538.  Whether  immature 
crops  may  be  claimed,  under  the  exemption  of  "  provisions  "  Quere? 
Id.  In  California,  the  statute  exempts  the  homestead  from  forced  sale 
on  execution.  Another  statute  exempts  the  farming  implements  of 
the  debtor,  certain  work  animals,  food  for  the  same  for  a  time,  and 
"  all  seed  grain  or  vegetables  actually  provided,  reserved  or  on  hand, 
for  sowing  or  planting,  at  any  time  within  the  ensuing  six  months." 
In  view  of  this  latter  provision,  held  impossible  to  declare  the  whole 
crop  grown  on  the  homestead  exempt.  Horgan  v.  Amick,  62  Calif.  401. 
Arms  may  be  exempted  as  household  goods.  Smith  i\  Smith,  52  Mich. 
538,  18  N.  W.  347.  Under  the  statutory  exemption  from  execution  of 
tools  and  implements  kept  and  held  by  the  debtor  for  carrying  on  his 
business,  the  keeper  of  a  hotel  may  claim  an  omnibus,  as  exempt. 
White  t'.  Gemeny,  47  Kans.  741,  28  Pac.  1011,  27  Am.  St.  320;— and  a 
solicitor  of  insurance,  the  horse  and  buggy  which  he  uses  In  his 
business.  Wilhite  v.  Williams,  41  Kans.  288,  21  Pac.  256.  The  phrase 
"  Mechanic,  miner  or  other  person "  includes  an  insurance  agent, 
and  abstractor  of  titles,  and  he  may  claim  as  exempt  as  tools,  a  safe, 
a  lot  abstracts,  a  cabinet  and  table,  Davidson  v.  Sechrist,  28  Kans.  324. 
The  statute  exempting  two  horses  in  addition  to  "  the  farming 
utensils  and  implements  of  husbandry  "  of  the  debtor,  it  was  held 
that  where  the  debtor  had  but  two  horses,  one  of  them  a  stallion, 
used  principally  as  such,  so  that  "  almost  the  entire  income  from 
that  is  from  the  service  of  such  horse  as  a  stallion,"  the  horse  was 
novertheloHH  exempt.  But  an  unbroken  colt  cannot  be  claimed  as  a 
work  animal.  Drake  v.  Crane,  112  La.  156.  26  So.  306.  It  Is  not 
necoHHary  that  th*;  owner  Khali  devote  hlmsolf  fxcluHlvely  to  hus- 
bandry, nor  that  the  exempt  ImplcmentK,  etc.,  Hliouhl  bo  exduHlvely 
devoted  to  the  pur|K)HeH  of  husbandry.  McCuc,  t'.  Tunntead,  Calif.  3 
Pac.  863      The  Htatiite  muHt  receive  a  liberal  construction,  Conklln  v. 


2&4  THE    LAW    OF    REPLEVIN. 

shelter  is  sought.     When  exempt  property  is  levied  on,  the  debtor 
ought,  at  the  time,  or  seasoiiabh'  thereafter,  to  specially  claim  the 

McCauley.  41  Ap.  Div.  452,  58  N.  Y.  Sup.  879.  In  Minnesota,  partner- 
ship goods  cannot  be  demanded  as  exempt.  Baker  v.  Sheehan,  29 
Minn.  235,  12  N.  W.  704.  Otherwise  in  South  Dalvota,  Linander  v. 
Longstaff,  7  S.  D.  158.  63  N.  W.  775;  Noyes  v.  Belding,  5  S.  D.  603,  59 
N.  W.  1069.  Where  there  is  an  exception  in  the  exemption  law,  e.  g., 
of  goods  seized  on  execution  isued  upon  a  judgment  for  the  price, 
whoever  asserts  the  exception,  must  bring  the  case  within  it;  he  must 
show  that  the  goods  claimed  as  exempt,  were  sold  by  the  creditor. 
Wagner  v.  Olsen,  3  N.  D.  69,  54  N.  W.  286.  No  exemption  is  allowed 
where  the  demand  is  for  the  purchase  price  of  the  goods,  Gottesman  v. 
Chipman,  125  Mich.  GO,  83  N.  W.  1026.  But  semble  the  officer  cannot 
take  the  whole  of  the  stock,  where  there  is  a  just  claim  of  exemption 
as  to  part  of  the  goods,  and  those  were  not  purchased  of  the  creditor. 
Id.  Voluntary  transfer  of  exempt  goods  does  not  render  them  liable  to 
execution  for  the  debts  of  the  donor,  Furman  v.  Finney,  28  Minn.  77, 
S  C.  sub.  nom.  Furman  v.  Fenny,  9  N.  W.  172.  Fraudulent  transfer 
of  exempt  foods  by  hi;shand  to  wife,  does  net  render  them  liable  to 
seizure  for  the  husbacl's  debt.  Daniels  v.  Cole,  21  Neb.  156,  31  N.  W. 
491.  Where  the  wife  is  entitled  to  claim  household  .2;oods  as  exempt, 
no  act  of  the  husband  can  impair  her  right.  Hanselman  v.  Kegel,  60^ 
Mich.  540,  27  N.  W.  678.  Receiptor,  in  an  action  by  the  officer  upon 
the  receipt,  is  not  estopped  to  show  that  the  goods  are  exempt.  Wil- 
liams V.  Morgan,  50  Wis.  548,  7  N.  W.  541.  Failure  of  a  debtor  to 
claim  his  exemption  at  the  time  of  a  levy,  he  having  knowledge  of 
the  levy,  is  not,  as  matter  of  law,  a  waiver.  Copp  v.  Williams,  135 
Mass.  401.  The  sheriff  cannot  defeat  the  exemption  by  failing  to 
cause  an  appraisement  to  be  made,  in  response  to  the  debtor's  demand. 
Linander  v.  Longstaff,  7  S.  D.  157,  63  N.  W.  775.  Where  the  right  is 
given  to  the  wife,  it  cannot  be  defeated  by  showing  that  the  goods 
were  turned  out  by  the  husband,  King  v.  Moore,  10  Mich.  538.  The 
fact  that  the  householder  is  temporarily  sojourning  within  the  family 
of  another  will  not  deprive  him  of  the  exemption.  Chesney  v.  Fran- 
cisco, 12  Neb.  626,  12  N.  W.  94.  Where  exempt  goods  are  levied  upon 
under  execution,  and  replevied  by  defendant  in  execution,  and  judg- 
ment of  return  is  given,  and  the  plaintiff  in  the  replevin  returns  the 
goods,  without  making  a  distinct  claim  of  his  exemption,  before  the 
sale  under  execution,  the  judgment  in  replevin  will  be  a  bar  to  a 
subsequent  action  by  the  plaintiff  in  replevin  for  taking  exempt  goods. 
McGuire  v.  Galligan,  57  Mich.  38,  23  N.  W.  479.  The  right  to  exempt 
property  must  be  asserted  at  the  time  and  in  the  manner  prescribed 
by  law,  or  it  is  lost.  But  where  the  statute  authorizes  replevin 
for  goods  unlawfully  detained  a  householder  may  replevy  goods 
unlawfully  attached  without  moving  for  the  discharge  of  the  prop- 
erty under  the  attachment  suit.  Upp  v.  Neuhring,  la.,  104  N.  W.  350; 
Boesker  v.  Pickett,   81   Ind.   554.     The   fact  that  the   debtor  presents 


GOODS    IN    THE    CUSTODY    OF    THE    LAW.  255 

Ijenefit  of  the  exemption  ;  he  cannot  sustain  replevin  for  property 
he  has  not  selected  and  claimed  as  exempt/'     So,  when  a  certain 

♦^O'Donnell  v.  Seger,  25  Mich.  371;  Seaman  v.  Luce,  23  Barb.  240. 
As  to  the  practice,  see  Newell  v.  Hayden,  8  Iowa,  140.  But,  see  Frost 
V.  Mott,  34  N.  Y.  253. 

at  first  a  schedule  differing  from  that  finally  relied  upon,  does  not 
deprive  him  of  his  exemption.  Id.  The  fact  that  the  debtor  has 
once  sold  an  article  does  not  preclude  him  from  a  claim  to  exempt  it, 
after  he  has  rescinded  the  sale.  Id.  The  exemption  need  not  be  asserted 
in  the  petition  in  replevin.  Eikenbary  r.  Clifford,  34  Neb.  607;  52  N.  W. 
377.  The  debtor  is  entitled  to  the  exemption  prescribed  by  the  statute 
although  he  has  previously  secured  an  exemption  and  disposed  of  or 
consumed  the  goods.  Hart  v.  Cole.  O.  St.  76  N.  E.  940,  citing  Krauters 
Appeal,  150  Pa.  St.  47,  24  Atl.  603;  Weis  v.  Levy,  C9  Ala.  209;  Chatten  v. 
Snider,  126  Ind.  387,  26  N.  E.  166;  Frost  v.  Naylor,  68  N.  C.  325.  Where 
the  whole  property  of  the  debtor  does  not  amount  in  value  to  the 
statutory  exemption,  he  is  the  absolute  owner  without  any  selection 
or  doing  any  act  or  thing,  and  may  make  any  disposition  of  it  at 
his  pleasure.  No  creditor  can  assail  his  transfer  as  fraudulent.  Skin- 
ner V.  Jennings,  137  Ala.  295,  34  So.  622;  McClelland  v.  Barnard,  Tex. 
Civ.  Ap.  81  S.  W.  591.  The  fact  that  the  debtor  is  intending  to  remove 
from  the  state  does  not  deprive  him  of  his  statutory  exemption  if  he 
has  not  actually  begun  to  remove.  The  delivery  of  his  household  goods 
to  a  carrier  to  be  transferred  to  another  state,  consigned  to  the  debtor 
himself,  is  not  sufficient.  The  first  residence  is  not  lost  until  a  second 
is  gained  and  so  long  as  the  debtor  retains  his  residence  he  is  en- 
titled to  the  exemption.  Brown  v.  Beckwith,  51  S.  E.  977.  Where  the 
statute  declares  that  a  married  woman  shall  be  liable  jointly  with 
the  husband  for  necessaries  furnished  the  family  and  that  the  wife 
shall  be  made  a  party  to  the  action  and  "  all  questions  Involved  de- 
termined therein  and  recited  in  the  judgment  and  execution " — a 
judgment  conforming  to  this  statute  does  not  preclude  the  widow  of 
the  debtor  from  claiming,  as  exempt,  goods  which  the  judgment  ex- 
pressly declared  to  be  subject  to  execution  for  the  satisfaction  thereof. 
White  V.  Wilson,  106  Mo.  Ap.  406,  80  S.  W.  092.  Whoever  asserts 
the  exemption  must  establish  all  the  precedent  conditions  prescribed 
by  the  statute  and  upon  which  exemption  depends.  Williamson  v. 
Flnlayson,  Fla.  38  So.  50:  e.  g.,  where  the  statute  gives  the  exemp- 
tion only  for  "  debts  founded  on  contract,"  the  complaint  for  exempt 
goods  taken  In  execution,  must  show  among  other  things  requisite 
to  entitle  plaintiff  to  the  exemption,  that  the  judgment  upon  which 
the  execution  Issued  was  for  "  a  ficbt  foundf<l  on  contract."  New- 
comer V.  Alexander,  96  Ind.  4r.3.  Where  dcffudant's  aiiHwor  asserts 
a  right  to  retain  the  goods  by  virtue  of  a  lion  tlH-reon.  !)ut  docs  not 
demand  a  return  of  them,  no  notice  demanding  judgment  for  the 
return  am  prescribed  by  Sec.  1725  of  the  Code,  Is  requln'd.     McCobb  v. 


256  THE    LAW    OF    REPLEVIN. 

amount  of  a  particular  kind  of  property  is  exempt,  the  debtor 
must  select  and  claim,  or  in  some  lawful  manner  assert  his  rights. 
If  the  sherifl'  levy  execution  on  the  whole  of  that  class  of  property, 
the  debtor  cannot  sustain  replevin  until  he  select  and  demand 
the  exempted  portion.*"  A  waiver  of  exemption  in  favor  of  one 
creditor  cannot  be  taken  advantage  of  by  another.*'  Nor  will  a 
mortgage  be  a  waiver  of  the  right  to  claim  property  as  exempt, 
except  as  against  the  mortgagee."  Under  a  statute  which  ex- 
empts swine,  the  flesh  of  such  swine,  when  killed  and  dressed,  is 
also  exempt."  So  of  butter  made  from  a  cow  which  is  exempt.** 
But  hay  or  grain  exempted  for  the  purpose  of  feeding  domestic 


~Tullis  V.  Orthwein,  5  Minn.   377. 

">'  Frost  V.   Mott,  34   N.   Y.   253. 

"Reynolds  v.  Salee.  2  B.  Mon.    (Ky.)    18. 

"'  Gibson  v.  Jenney,  15  ]\Iass.  206. 

'"Leavitt  v.  Metcalf,  2  Vt.  342;   Haskill  v.  Andros,  4  Vt.  610. 

Chri?tiansen.  28  Misc.  119,  59  N.  Y.  Sup.  303.  Complaint  for  a  piano 
as  exempt,  averred,  not  that  the  instrument  was  a  necessary  article  of 
household  furniture,  nor  that  it  was  exempt  by  virtue  of  the  statute; 
but  that  at  the  time  it  was  taken  plaintiff  notified  defendant  that  the 
same  was  a  necessary  article  of  household  furniture,  and  that  she 
claimed  it  as  exempt.  Held,  that  by  fair  intendment  the  complaint 
could  be  sustained,  as  importing  that  the  piano  was  a  necessary  article 
of  household  furniture;  and  an  amendment  at  the  close  of  the  trial  was 
held  properly  permitted.  Conklin  v.  McCauley,  41  Ap.  Div.  452,  58  N. 
Y.  Sup.  879.  Plaintiff  claiming  goods  as  exempt  must  in  his  complaint 
show  the  facts  which  entitle  him  to  the  exemption.  It  is  not  enough  to 
aver  that  the  goods  are  exempt.  Donnelly  v.  Wheeler,  34  Ark.  111.  If 
part  of  the  goods  only  are  exempt,  the  one  claiming  the  exemption  has 
the  burden  of  showing  to  what  it  extends,  Hilman  v.  Brigham,  117  la.  70, 
90  N.  W.  491,  citing  Hays  v.  Berry,  104  la.  455,  73  N.  W.  1028.  Where 
exempt  goods  have  been  replevied,  defendant  recovers  them  or  their  full 
value,  without  deduction  on  account  of  any  indebtedness  of  the  defend- 
ant to  plaintiff,  Rawlings  v.  Neal,  126  N.  C.  271,  35  S.  E.  597.  The 
cause  cannot  be  controlled  by  one  theory  as  to  the  officer  levying  an 
execution,  and  by  a  different  theory  as  to  the  creditor  in  that 'execution; 
a  finding  in  favor  of  the  officer  that  the  goods  are  not  exempt,  pre- 
cludes a  judgment  against  the  creditor  who  has  purchased  them  at  the 
execution  sale.  Redinger  v.  Jones,  68  Kans.  627,  75  Pac.  997.  Under 
the  code  of  Kansas  replevin  for  exempt  goods,  admits  the  validity  of 
the  judgment  upon  which  the  execution  issued.  Id.  In  trover  for  ex- 
empt goods  no  set  off  is  allowed,  Caldwell  v.  Ryan,  Mo.  Ap.  79  S.  W. 
743. 


GOODS  IN  THE  CUSTODY  OF  THE  LAW.       257 

animals  is  not  exempt  unless  the  party  claiming  it  has  tho 
animals.** 

§  270.  The  exemption  a  personal  privilege.  This  exemp- 
tion of  property  from  forced  sale  on  execution  is  a  personal  privi- 
lege and  must  be  exercised  by  the  debtor  personally,  or  it  will  be 
regarded  as  waived.-*  In  replevin  against  the  sheriff,  the  plain- 
tiff claimed  a  span  of  horses,  by  purchase  from  B.  The  sheriff 
replied  that  he  had  seized  them  on  an  execution  against  B.,  and 
that  they  were  B.'s  property.  Tlie  plaintiff'  asked  the  court  to 
Instruct  the  jury  that,  "under  the  laws,  one  span  of  horses  was 
exempt,  and  that  if  B.  had  no  other  horses  than  these,  whicli  were 
exempt,  the  defense  of  the  sheriff  would  fail.'"  The  court  prop- 
erly refused  the  instruction.  The  exemption  was  the  i)ers()nal 
privilege  of  the  debtor,  and  might  be  waived  by  him,  and  if  so 
waived,  it  could  not  be  asserted  by  another." 

§  271.  The  same.  Damages  and  costs  in  such  cases. 
"While  the  rule  which  permits  replevin  for  property  by  law  ex- 
empt is  supported  by  abundant  authority,  it  has  been  said  that 
neither  damages  nor  costs  should  be  awarded  in  such  cases ;  ^  but 
this  does  not  seem  to  rest  on  any  w^ell-founded  reason.  The 
sheriff  who  willfully  or  ignorantly  takes  property  in  defiance  of 
the  law,  should  respond  to  the  injured  party  in  compensatory 
damages,  at  least.*" 

§  272.  Jurisdiction  in  replevin,  where  goods  have  been 
wrongfully  seized.  When  goods  have  Ijcen  wrongfully  seized 
by  an  oftiecr  upon  process,  and  the  owner  desires  to  contest  the 
validity  of  the  seizure,  the  question  arises,  in  what  court  shall  his 
suit  be  brought?  There  may  be  a  court  competent  to  take  juris- 
diction over  the  subject  matter  of  the  controversy,  as  well  as  the 
person  of  tlie  defendant,  within  easy  access  ;  whiU^  the  court  from 
which  the  process  issued,  upon  which  the  wrongful  seizure  was 
made,  may  be  distant  and  difficult  of  access.  Whether  any  ex- 
clusive juri.sdiction  attaches  to  this  latter  court  may  Ix;  a  (jues- 
tion  (jf  importance.     There  appears  to  be  no  good  icason  w hy  the 

"  FoH8  V.  Stewart.  U  Me.  312. 

••Bonsall  v.  Comly,  44  Pa.  St.  442;    Mickles  v.  Tousloy,  1   Cow.   114; 
Earl  V.  Camp.  If.  Wen<l.  5C2. 

"Howland  v.  Fu\U;r.  8  Minn.  r,0. 

"Saffell  V.  WalBh,  4  B.  Mon.  (Ky.)  92. 

••Pozzonl   V.    Mf'nderHon,   2   E.   D.   Smith    IIC;    Whltnkor  v.   Wheeler, 
44   III    447;   LIvor  v.  OrHer,  5  Duer.  GOl. 
17 


258  THE    LAW    OF    REPLEVIN. 

court  issuing  the  process,  behind  which  tlie  oflficer  assumes  to 
shelter  himself,  should  alone  have  juristliotion  in  such  cases. 
Upon  process  of  attachment  issued  from  the  Superior  Court  of 
Cook  County,  the  sheriff  levied  upon  goods  which  were  after- 
wards replevieri  from  him  hy  the  owner,  (who  was  not  the  de- 
fendant in  the  attachment,)  upon  a  writ  of  replevin  issued  out  of 
the  Circuit  Court  of  Cook  County.  The  court  said,  "  there  is  no 
apparent  reason  why,  if  the  action  of  replevin  might  be  brought 
in  the  Superior  Court  of  Cook  County,  it  might  not,  with  equal 
propriety,  be  brought  in  the  Circuit  Court  of  that  county,  which 
is  practically  a  branch  of  the  same  court."  *"  The  court,  however, 
in  this  case,  cites  IXiylor  et  al.  v.  Carryl^  20  IIow.  (U.  S.)  583, 
and  Freeman  v.  Hoxce^  24  IIow.  450,  and  seems  to  recognize  the 
doctrine  that  when  goods  are  in  the  custody  of  the  oflficer  of  a 
United  States  court,  under  its  process,  they  cannot  be  taken  by 
process  from  a  State  court. 

§273.  The  same.  The  question  stated.  It  is  unquestion- 
ably the  law,  that  when  goods  are  rightfully  in  the  custody  of 
an  officer  of  the  United  States  court,  under  judicial  process  from 
such  court,  replevin  will  not  lie  to  dispossess  him  ;  but  where  an 
officer  assumes  to  take  goods,  in  violation  of  the  commands  of  his 
writ,  lie  cannot  be  said  to  take  them  by  virtue  of  the  process  of 
the  court.  On  the  contrary,  all  the  authorities  agree  that  an 
officer  so  holding  is  a  trespasser.  His  holding  is,  in  fact,  a  dis 
obedience  of  the  mandate  of  the  court,  and  he  is  personally  liable 
to  the  injured  party.  This  presents  the  question,  as  to  whether 
a  party  whose  property  has  been  wrongfully  taken  by  an  officer 
of  the  United  States,  on  process  from  a  federal  court,  can  employ 
the  officers  and  process  of  the  State  courts  to  recover  it. 

§  274.  The  rule  in  Freeman  v.  Howe.  The  leading  case 
on  this  subject  is  Freeman  v.  Jlowe^  which  originated  in  a  State 
court  in  Massachusetts,  and  was  subsequently  passed  upon  by  the 
Supreme  Court  of  the  United  States.  Process  of  attachment  in 
a  suit  for  debt  was  issued  from  a  United  States  Court  to  its  mar- 
shal, commanding  him  to  attach  the  property  of  the  Vermont  & 
Massachusetts  R.  R.  Co.  Upon  that  process  the  marshal  seized 
upon  thirteen  cars,  which  were  afterwards  replevied  upon  a  writ 
issued  from  a  State  court  in  Massachu.setts.  Upon  the  trial,  the 
marshal  contended  that  the  property  was  taken  by  him  under 

•"Samuel  v.  Agnew,  80  111.  554. 


GOODS    IN    THE    CUSTODY    OF    THE    LAW.  259 

process  from  the  United  States  court,  and  that  replevin  in  a  State 
court  would  not  lie.  Dewey,  J.,  in  delivering  the  opinion  of  the 
appellate  court  in  Massachusetts,  said :  "  These  articles  were  not 
seized  for  the  purpose  of  being  proceeded  against  in  the  courts  of 
the  United  States  by  any  proceeding  in  rem.  They  were  not  the 
subject  of  the  case  then  to  be  tried.  The  process  from  the  United 
States  court  was  that  usually  issued  for  the  recovery  of  a  debt, 
unaccompanied  by  any  lien  or  charge  upon  the  goods,  except  that 
resulting  from  an  attachment  to  secure  an  alleged  debt.  The  only 
process  to  the  marshal  was  one  commanding  him  to  attach  the 
property  of  the  Vermont  &  Massachusetts  R.  R.  Co.  not  a  war- 
rant to  seize  these  cars."  And  upon  this  reasoning  the  court  held 
that  replevin  in  a  State  court,  by  the  real  owner,  against  the  mar- 
shal, was  proper.*'  The  case,  however,  went  to  the  United  States 
Supreme  Court,  and  the  decision  of  the  State  court  was  reversed  ; 
the  reversal  being  placed  upon  the  ground  that  the  right  of  the 
defendant,  the  marshal,  to  hold  the  goods  was  a  question  belong- 
ing to  the  federal  court,  under  whose  process  they  were  seized, 
and  that  there  was  no  authority  in  an  officer,  under  process  issued 
from  a  State  court,  to  interfere  with  property  which  had  been 
seized  by  a  marshal  under  process  from  a  United  States  court.*^ 

§  "llh.  The  doctrine  in  this  case  considered.  This 
decision  has  not  provoked  the  discussion  which  it  would  certainly 
have  occasioned  had  it  been  a  similar  opinion  from  any  other 
court.  The  bare  autliority  of  the  Supreme  Court  of  the  United 
States  being  a  sufficient  reason  for  avoiding  all  question  as  to  its 
correctness.  The  reasoning  has,  nevertheless,  been  criticized  in  a 
number  of  cases  in  the  State  courts,  and  e.\i)lained  at  least  once 
in  the  United  States  Supreme  Court.  Mr.  Justice  Paine,  of 
Wi-sconsin,  remarks,  "  that  the  conclusions  of  the  court,  (in 
Freeman  v.  JJoire,)  do  not  appear  to  l)e  Ijased  upon  any  effect 
given  to  any  provision  of  the  constitution  or  laws  of  the  United 
States,  so  that  its  decision  would  not,  according  to  the  prevailing 
(jl)inion,  be  binding  in  the  State  courts  ;  but  it  seems  to  rest  upon 
grounds  of  comity."  And  while  the  doctrine  in  that  ea.so  is 
followed,"  it  is  with  doubt  and  misgiving  as  to  the  correctness  of 
the  i)rinciple.     In  Minnesota,  in  replevin  from  a  I'nited   SUites 

"Howe  V.  Froeman.  14  Gray,  (.Muhh.)  G27. 

"Freeman  v.  Howe  et  al.,  24   How.   (U.  S.)   4G0. 

•Kinney  v.  Crocker.  18  WIh.  V.\.     S<m-  Hiick  v.  Colhatli,  7  Mliiu.  .110. 


2G0  THE    LAW    OF    REPLEVIN. 

marshal,  the  answer  of  the  marshal  denied  the  plaintiff's  right, 
and  set  up  that  the  defendant,  a  United  States  marshal,  held  a 
valid  writ  of  attachment  against  the  goods  of  L.;  that  he  levied 
on  the  goods  as  the  property  of  L.  and  that  they  were  his  prop- 
erty, and  demanded  a  return.  To  this  plea  there  was  no 
answer,  and  the  court  said  the  case  stands  admitted  for  want  of 
an  answer.  The  court,  in  delivering  its  opinion,  cited  the  case  of 
Freeman  v.  Howe,  and  said:  "If  we  understand  this  decision,  it  is 
based  upon  the  sole  ground  that  one  court  cannot  take  the  prop- 
erty from  the  custody  of  another  by  replevin,  or  any  other  pro- 
cess ;  for  this  would  produce  a  conflict  extremely  embarrassing  to 
the  administration  of  justice.  Whether  this  evil  may  be  greater 
than  that  of  always  compelling  a  party  to  resort  to  the  court  out 
of  which  the  process  issued,  upon  which  his  proi)erty  has  been 
seized,  to  assert  his  legal  rights,  may  well  be  questioned.  *  *  * 
It  cannot  be  denied  but  that  there  are  expressions  and  statements 
in  the  opinion  in  Freeman  v.  Iloice  which  would  lead  to  the  con- 
clusion that  the  court  in  that  case  reversed  the  decision  of  the 
State  court  upon  the  ground  that  the  State  court  had  not  juris- 
diction of  the  case,  but  we  think  not  *  *  *  Conceding,  therefore, 
the  correctness,  or,  at  least,  the  bifiding  force  of  the  decision  in 
Freeman  v.  Iloine^  we  think  the  judgment  must  be  for  a  return." 
§  27 G.  The  same.  The  same  court  had  the  question  before 
it  again,  where  it  employed  the  following  reasoning:  "If  there 
is  any  principle  of  law  which  may  be  considered  as  settled  by  a 
long  series  of  uniform  decisions,  it  is,  that  he,  whether  an  officer 
of  the  law  or  otherwise,  who  takes  the  property  of  another  vAth.- 
out  authority,  is  a  wrong-doer,  and  the  taking  is  wrongful.  *  *  * 
The  only  approach  to  any  innovation  upon  this  rule,  so  far  as  we 
are  aware,  by  the  courts  of  this  country,  is  the  case  of  Freeman 
V.  Jloine,  24  How.  (U.  S.)  450.  Even  though  the  officer  acted 
upon  the  fullest  knowledge  and  information  obtainable,  as  to  the 
ownership  of  the  property,  and  that  he  fully  and  honestly  be- 
lieved, and  had  good  reason  to  believe,  that  the  property  was  the 
property  of  the  defendant,  and  that  he  was  in  duty  bound  to  levy 
on  it,  it  is  no  defense.  The  law  has  not  left  the  rights  of  prop- 
erty and  the  protection  afforded  thereto  to  depend  on  the  mere 
belief  or  good  faith  of  the  officer  holding  process  ;  nor  will  his 
good  faith  protect  him  from  the  consequences  of  his  illegal  acts. 

"Lewis  V.  Buck,  7  Minn.     104. 


GOODS    IN    THE    CUSTODY    OF    THE    LAW.  261 

The  sheriff,  when  he  levies  on  pi-opert}^  must  do  so  at  his  own 
risk,  and  if  he  seizes  property  not  authorized  by  his  process,  he  is 
a  trespasser."  ^  In  Wisconsin,  the  doctrine  was  distinctly  stated, 
that  when  property  exempt  from  seizure  by  the  laws  of  the 
State,  was  seized  by  a  United  States  officer,  for  debt,  replevin 
would  lie  in  the  Stixte  court.  It  was  claimed  in  this  case  that  tlie 
horses  were  taken  and  held  by  virtue  of  an  execution  issued  out 
of  the  District  Court  of  the  United  States,  and  hence  were  in  the 
custody  of  the  law.  "  But  how  could  they  be  in  the  custody  of 
the  law  unless  the  marshal  had  a  lawful  right  to  take  them  into 
his  custody?  The  idea  that  an  unlawful  custody  of  property 
can  be  the  custody  of  the  law  is  absurd."  *'* 

§  277.  The  same.  While  the  case  of  Freeman  v.  Ilo^ce  may 
be  regarded  as  a  decision  of  tliis  question  by  the  court  of  the  last 
resort,  the  reasoning  of  the  court  and  the  conclusions  arrived  at 
do  not  produce  that  conviction  of  the  soundness  of  the  doctrine 
laid  down  which  usually  follows  the  opinion  of  that  eminent 
tribunal.  It  seems  to  be  in  conflict  with  the  earlier  case  of 
Slocum  V.  Matjherri)^  '2  Wheat.  "2.  It  is  difficult  to  see  where  any 
material  inconvenience  would  follow  the  enforcement  of  a  con- 
trary rule ;  while  it  is  apparent  that  the  practical  operation  of 
the  rule  as  laid  down  is  to  permit  an  officer  with  process  of  ex- 
ecution or  attachment  against  A.  either  ignorantly  or  Avillfully  to 
seize  on  the  goods  of  B.,  and  to  compel  the  real  owner  to  submit 
to  their  loss,  or  be  at  the  vexation  and  expense  of  a  resort  to  a 
distsint  court. 

§  278.  The  same.  P'rom  the  time  of  the  case  of  Ilallet  v. 
Byrt,  Carth.  380  (A.  D.  1G87),  until  the  present  day,  the  courts 
have,  without  an  exception  (unless  it  be  in  Frcemun  v.  Ilowe)^ 
sustained  the  doctrine  promulgated  in  tliat  ancient  case,  that 
where  thesheriff  ])y  })rocess  of  execution  or  attachment  is  directed 
to  levy  on  tiie  goods  of  tlie  defendant  in  the  process,  and  this  lie 
must  do  at  his  own  peril,  not  at  the  peril  of  the  owner  of  the 
goods.  Another  iind  serious  cmliarrassment  which  seems  to 
grow  out  of  tin;  enforcement  of  tlie  rule  as  laid  down  in  the  case 
of  Freeman  v.  //ojoe,  is  that  il  draws  int(»  the  Federal  courts  all 

"Caldwell  v.  Arnold.  8  Minn.  liCG. 

••Oilman  v.  WilllamB  ct  ul..  7  Wis.  329.  Soe  the  case  of  Booth  v. 
Ahieman.  which  appeared  In  1«  WIh.  4G3.  and  uKuIn  in  18  Wis.  496, 
and  in  20  WIh.  23  and  633;  Ward  r.  Henry.  19  WIh.  77;  Weber  v.  Henry, 
16  Mich.  399;    Hanna  v.  SteinberKcr,  6  Hlack,  Ji21. 


262  THE    LAW    OF    REPLEVIN. 

litigation  in  respeot  to  tlie  title  to  property  attached  by  the 
United  States  marshal,  thougli  l)ct\veen  strangers  to  the  attach- 
ment suit  and  altliough  involving  the  adjudication  of  mere  legal 
claims  l)et\voeu  citizens  of  the  same  State,  Avhich  the  Constitu- 
tion designed  to  exclude  from  Federal  jurisdiction. 

§  279.  The  same.  Slocxim  v.  Nayherrn^  2  Wheat.  2,  was  a 
case  where  a  ship  was  seized  for  a  suspected  violation  of  law ; 
the  cargo  was  taken  with  the  ship  and  detained  by  the  United 
States  officer ;  the  owner  of  the  cargo  brought  replevin  in  the 
State  court  of  Rhode  Island,  and  was  sustained  by  the  United 
States  Supreme  Court.  Chief  Justice  ]\Iausu.\i,l,  delivering  the 
opinion  of  the  court,  said  :  "  The  cargo  remained  in  the  custody 
of  the  officer  because  it  had  been  placed  on  a  vessel  in  his  custody, 
but  no  law  prevents  it  being  taken  out  of  the  vessel.  The  owner 
has  the  same  right  to  his  cargo  that  he  has  to  any  other  prop- 
erty, consequently  he  may  demand  it  from  the  officer  in  whose 
possession  it  is,  that  officer  having  no  legal  right  to  withhold  it 
from  him ;  and  if  it  be  withheld  he  has  a  right  to  appeal  to  the 
laws  of  his  country  for  relief.  The  acts  of  Congress  neither  ex- 
pres.sly  nor  by  implication  forbid  the  State  court  to  take  cog- 
nizance of  suits  instituted  for  property  in  the  possession  of  an 
officer  of  the  United  States,  not  detained  under  some  laAv  of  the 
United  States,  consequently  the  jurisdiction  remains.  Had  the 
replevin  been  for  the  vessel,  which  was  detained  by  the  authority 
of  the  law  of  the  United  States,  the  case  would  have  been  entirely 
different." 

§  280.  The  same.  Chancellor  Kext  lays  down  the  law  that 
if  a  marshal  of  the  United  States,  under  an  execution  against  A., 
should  seize  the  property  of  B.,  then  the  State  courts  have  power 
to  restore  the  property  so  illegally  taken.®'  This  statement  is, 
in  the  opinion  of  Freeman  v.  Iloicey  24  How.  459,  said  to  be  "  an 
error  into  which  the  learned  chancellor  fell,  from  not  being 
practically  familiar  with  the  jurisdiction  of  the  Federal  courts." 
But  the  opinion  of  Chief  Justice  Marshall,  in  the  case  before 
cited,  seems  in  substantial  principles  to  sustain  the  statements  of 
the  chancellor.  Davidson  v.  WaMron,  31  111.  121,  was  an  action 
of  trover,  where  Davidson,  with  others,  sought  to  recover  the 
value  of  lumber  Avhich  he  alleged  was  levied  upon  by  himself  as 
United  States  Marshal.     The  defendants  resisted  on  the  ground 

'•1  Kent  Com.  410,  citing  Slocum  v.  Mayberry,  supra. 


GOODS    IN    THE    CUSTODY    OF    THE    LAW.  263 

of  the  insuflBciency  of  the  levy,  and  this  was  ol)jected  to  by 
Davidson  on  the  ground  that  the  validity  of  the  levy  could  not 
be  enquired  into  in  the  State  court ;  but  the  court  said  that  the 
remedy  was  sought  by  the  party  as  an  individual,  not  as  an 
officer  of  court.  "There  is  no  principle  of  law"  which  renders 
writs  issued  by  United  States  courts,  or  the  acts  of  officers  claim- 
ing to  act  under  such  writs,  invulnerable  to  criticism  in  the  State 
courts."  And  this  appears  to  offer  a  solution  of  the  question. 
An  officer  of  the  United  States  court  ought  not  to  have  any 
special  privilege  to  commit  trespass. 

§  281.  The  same.  lixck  v.  Colbath,  3  Wal.  (U.  S.)  334,  was 
an  action  of  trespass  originally  begun  in  a  State  court  in  Minne- 
sota. The  defendant  pleaded  that  he  was  a  United  States 
marshal  for  the  District  of  ^lirmesoLa ;  that  a  writ  of  attachment 
came  to  his  hands,  and  that  he  levied  on  goods,  for  the  taking  of 
which  he  was  sued  by  Colbath,  but  he  did  not  in  his  plea  aver 
that  the  goods  were  the  property  of  the  defendant  in  the  attach- 
ment. The  plaintiff  had  judgment  in  the  State  court,  and  the 
case  was  t;iken  to  the  United  States  Supreme  Court,  under  Sec.  25, 
of  the  judiciary  act  of  the  United  States.  Mr.  Justice  Millkr, 
in  delivering  the  opinion  of  the  latter  court,  says:  "  The  decision 
in  Fretinan  v.  Home  took  the  profession  generally  by  surprise, 
overruling  as  it  did  the  unanimous  opinion  of  the  Supreme  Court 
of  Massachusetts,  as  well  as  the  opinion  of  Chancellor  Kknt." 
The  court,  however,  follows  the  doctrine  in  Freeman  v.  Iloxce^ 
alleging  as  a  rea.son,  that  a  departure  from  the  rule  in  that  case 
would  lead  to  the  utmost  confusion  and  endless  strife.  The  court 
further  says  substantially,  that  property  may  be  seized  by  an  of- 
ficer of  court  under  a  variety  of  writs  These  may  be  divided 
into  two  cla.s.ses  :  1st,  Those  in  which  the  process  or  order  of  the 
court  describes  the  property  to  Ije  seized  and  which  contain  a 
direct  conniiand  to  the  officer  to  take  possession  of  that  particular 
property.  Of  this  class  are  the  writ  of  replevin  at  common  law, 
orders  of  seciuestration  in  chancery,  and  nearly  all  the  proces.'ies 
of  the  admiralty  courts  by  which  the  res  is  brought  before  it  for 
its  a<;tion.  2d,  Those  in  which  Ihc!  officer  is  directed  to  levy  the 
process  on  the  pnjpcrty  of  one  of  the  jiarties  to  tlie  litigation, 
sutticient  to  satisfy  the  demand  against  him,  without  describing 
any  particular  properly  to  be  thus  taken.  Of  this  class  are  the 
writ  of  attacliTuent,  or  otiicr  mesne  process,  by  which  tiie  prop- 
erty is  seized  Ijefore  judgment,  and  the  final  process  of  execution. 


264  THE    LAW    OF    REPLEVIN. 

elegit,  or  other  writ  by  whicli  uii  ordiiuirj'  jadgnieiit  is  carried 
into  ott'eet.  It  is  obvious,  on  a  niomont's  rellcetion,  tliat  tlie 
claim  l)y  the  officer  executing  these  writs  to  the  protection  of  the 
courts  from  whence  they  issue,  stand  upon  very  diflferent  grounds 
in  the  two  classes.  In  the  first  class,  he  has  no  discretion  to  use, 
no  judgment  to  exercise,  no  duty  to  perform  but  to  seize  the 
property.  And  if  the  court  had  jurisdiction,  and  the  process  Avas 
valid  on  its  face,  and  tlie  oflicer  had  kept  himself  within  the 
mandatory  clause  of  the  writ,  it  is  a  complete  protection  in  all 
courts.  In  the  other  class  of  cases,  the  officer  has  a  large  and 
important  field  for  the  exercise  of  his  discretion.  1st,  In  deter- 
mining that  the  property  on  which  he  proposes  to  levy  is  the 
property  of  the  person  against  whom  the  writ  is  directed, 
•id.  That  it  is  subject  to  levy,' etc.  So  where  the  action  was  tres- 
pass in  the  State  court  against  the  marshal  for  wrongful  levy  of 
an  attachment  issued  from  the  Federal  courts,  the  court  said 
there  was  nothing  in  the  fact  that  the  writ  issued  from  the  Fed- 
eral court,  to  prevent  the  marshal  from  being  sued  in  the  State 
court  for  his  own  tort  for  levying  on  property  of  a  person  not 
named  in  the  writ.  Among  courts  of  concurrent  jurisdiction, 
that  one  which  first  obtains  jurisdiction  has  the  exclusive  right 
to  decide  every  question  in  the  case,  but  this  only  extends  to 
suits  between  the  same  parties  or  persons  seeking  the  same  relief, 
and  does  not  affect  the  parties  so  far  as  other  and  distinct  relief 
is  concerned,  nor  does  it  affect  strangers  to  the  proceeding.*'** 

§  282.  The  same.  Apart  from  the  eminent  authority  of  the 
cases  in  conflict  with  the  doctrine  laid  down  in  Freeman  v.  Ilowey 
24  How.  450,  the  principles  of  the  law  which  have  been  recog- 
nized since  the  earliest  consideration  of  this  question,  warrant  the 
conclusion  that  where  an  officer  with  process  commanding  him  to 
take  the  goods  of  A.,  does  with  a  willful  and  deliberate  purpose 
of  oppression,  take  the  goods  of  B.,  the  writ  is  no  protection  to 
him  in  his  willful  trespass;  or,  where  an  officer  with  such  pio- 
cess  ignorantly  or  carelessly  levies  on  the  property  of  a  stranger 
to  the  writ,  it  affords  him  no  justification,  or  confers  any  right  or 
title  to  the  property.  That  in  eitiier  of  these  cases,  the  outraged 
owner  may  proceed  against  the  wrong-doer  personally,  and  in 
such  case  he  cannot  plead  license  from  any  court  whose  author- 
ity he  has  abused  and  whose  mandate  he  has  disobeyed.     The 

"^Buck  V.  Colbath,  3  Wall.   (U.  S.)   334. 


GOODS  IN  THE  CUSTODY  OF  THE  LAW.       265 

principles  gathered  from  these  eases  seem  to  be  in  conflict,  but 
the  task  of  harmonizing  them  must  be  left  to  future  consideration 
of  the  courts.  "Whether  the  State  courts  will  feel  bound  to  fol- 
low the  ruling  of  the  United  States  court  upon  this  question, 
which  does  not  involve  the  construction  of  the  Constitution,  or 
any  of  the  laws  of  the  United  States,  is  a  question  upon  which 
different  courts  will  be  likely  to  entertain  different  views."' 

«» Kinney  v.  Crocker,  18  Wis.  79;  Bruen  v.  Ogden,  (11  N.  J.  L.)  6 
Halst.  371. 

Note  XVI.  Jurisdiction  of  the  Federal  Courts. — The  federal  court, 
within  each  state,  exercises  the  same  jurisdiction  as  those  of  the  state, 
Healey  v.  Humphrey,  27  C.  C.  A.  39,  81  Fed.  990;  but  will  not  interfere 
with  the  possession  of  the  sheriff  under  process  from  the  state  court, 
Melvin  v.  Robinson,  31  Fed.  634.  See  however,  Wise  v.  Jefferis,  2  C. 
C.  A.  432,  51  Fed.  641,  where  it  was  held  that  goods  taken  by  the 
sheriff  under  an  attachment  from  a  state  court  may  be  replevied 
in  the  Federal  court,  in  case,  before  the  institution  of  the  replevin, 
the  judgment  in  the  state  court  in  which  the  attachment  issued,  has 
been  fully  satisfied.  The  Federal  court  will  not  appoint  a  receiver 
for  a  church  or  other  structure  pertaining  to  a  mission  school  situate 
upon  an  Indian  Reservation,  where  it  appears  that  the  same  struc- 
ture is  the  subject  of  a  suit  in  replevin  pending  in  the  state  court; 
nor  enjoin  the  plaintiff  in  the  state  court  from  interfering  with  the 
property  which,  under  the  process  of  the  state  court,  has  been  placed 
in  his  possession,  Domestic  Society  v.  Hinman,  13  Fed.  161.  The 
Federal  courts  cannot  allow  the  writ  of  replevin  where,  as  in  Virginia, 
the  writ  is  abolished,  Baltimore  Co.  v.  Hamilton,  16  Fed.  181.  The 
owner  of  goods  wrongfully  taken,  who  is  a  fellow  citizen  of  the  same 
state  with  the  wrong-doer,  may  assign  the  title  to  a  non-resident, 
and  he  may  maintain  replevin  in  the  Federal  court,  notwithstanding 
the  prohibition  contained  in  Section  11  of  the  Judiciary  Act  of  17S9, 
Deshler  v.  Dodge,  10  How.  622,  14  L.  Ed.  1084. 

Jurisdiction  Generally. — Where  the  sheriff  levies  upon  the  goods  of 
A  under  process  against  B,  the  action  of  the  latter  for  their  recovery  is 
not  confined  to  the  court  from  which  the  process  against  B  issued;  It 
may  be  brought  In  any  other  court  of  competent  jurisdiction  within 
the  state,  Dayo  v.  Provinski,  90  Mich.  351,  51  N.  W.  514;  Johnson  v. 
Jones,  16  Colo.  138,  26  Pac.  584;  In  the  Federal  court,  in  certain 
caHfH,  Wise  V.  Jefferis,  2  C.  C.  A.  432,  51  Fed.  641.  In  the  In<lian 
Territory  jurisdiction  Is  conferred  by  statute  upon  the  United  States 
CommlHHloner's  court,  concurrently  with  the  district  courts,  in  re- 
plevin, where  the  value  of  the  goods  does  not  exceed  three  hundred 
dollarK;  proceedlngB  are  the  uame  as  In  the  district  courts,  and  In 
the  district  court  by  statute,  several  causes  of  action  may  be  united. 
Held   that   In    the   commisHloner's    court   several    causes   of   action    iu 


266  THE    LAW    OF    REPLEVIN. 

replevin  might  be  united  in  one  complaint,  each  cause  being  within 
the  jurisdiction  as  to  amount,  and  the  plaintiff  might  talte  judgment 
upon  each  cause  of  action,  and  "  congregate  the  several  sums  into 
one  judgment,"  Harris  v.  Castleberry,  3  Ind.  Ter.  576,  64  S.  W.  541. 

Consent  cannot  confer. — Replevin  was  instituted  before  a  justice 
of  the  peace:  judgment  of  return  given  in  the  common  pleas  upon 
an  appeal  from  the  justice,  was  reversed,  on  error  brought  by  the 
original  plaintiff  for  want  of  jurisdiction  in  the  magistrate;  consent 
cannot  confer  jurisdiction  where  the  law  does  not,  Jordan  v.  Dennis, 
7  Mete.  590. 

Upon  tchat  the  Juj-ifidiction  Depends. — The  jurisdiction  does  not 
depend  upon  the  seizure  of  the  goods,  Laughlin  v.  Main,  63  la.  580, 
19  N.  W.  673;  nor  upon  the  issuance  of  a  summons  before  execution 
of  the  writ  of  replevin;  even  though  the  summons  is  the  institution 
of  the  action.  American  Bank  v.  Strong,  Mo.  Ap.  85  S.  W.  639.  In 
St.  Martin  v.  Desnoyer,  1  Minn.  41,  it  was  held  that  a  justice  of  the 
peace  has  no  jurisdiction,  even  by  consent  of  parties,  unless  the  goods 
are  replevied;  but  a  subsequent  statute  provides  that  notwithstanding 
the  property  is  not  found,  the  plaintiff  may  recover  the  value  of  his 
right  and  damages  for  the  illegal  taking  or  detention,  McKee  v.  Metrau, 
31  Minn.  429,  18  N.  W.  148.  The  jurisdiction  depends  upon  what  is 
alleged,  and  not  what  appears  to  be  the  fact  as  to  the  value  of  the 
thing  in  controversy,  Addison  v.  Burt,  74  Mich.  730,  42  N.  W.  278. 
The  appraisement  made  for  ascertaining  the  amount  of  the  bond  is 
not  the  test  of  jurisdiction,  Bates  v.  Stanley,  51  Neb.  252,  70  N.  W. 
972. 

Where  the  statute  allows  judgment  for  the  return  of  the  property 
only  where  demanded  in  the  answer,  judgment  for  return  given  with- 
out demand  is  held  to  be  void,  Gallup  v.  Wortman,  11  Colo.  Ap.  308, 
53  Pac.  247.  Where  the  statute  provides  that  no  justice  of  the  peace 
shall  issue  a  writ  of  replevin  without  an  affidavit  showing  plaintiff's 
right,  the  detention,  etc.,  the  aflBdavit  is  jurisdictional,  and  the  jus- 
tice record  must  show  on  its  face  that  the  affidavit  was  made  and  filed, 
Evans  v.  Bouton,  85  His.  579. 

Horv  Defect  of  Jurisdiction  may  be  Waived  or  Cured. — Objections  to 
the  jurisdiction  must  be  made  in  the  first  instance,  Clark  v.  Dunlap, 
50  Mich.  492,  15  N.  W.  565.  Plea  in  bar  or  appearance  in  a  justice 
court  without  objection,  waives  all  defects  in  the  jurisdiction,  based 
upon  the  proposition  that  the  action  is  not  brought  in  the  proper 
township,  Henderson  v.  Desbrough,  28  Mich.  170;  Buck  v.  Young,  1 
Ind.  Ap.  558,  27  N.  E.  1106.  If  an  administrator  not  sued  as  such 
appears,  pleads  the  general  issue  and  proceeds  to  a  trial  on  the  merits, 
he  waives  all  exception  to  the  jurisdiction.  Singer  Co.  v.  Benjamin, 
55  Mich.  330,  21  N.  W.  358,  23  Id.  25.  But  the  absence  of  an  affidavit 
where  made  a  condition  precedent  by  statute,  is  fatal  to  the  jurisdic- 
tion, if  objected  to  in  the  first  instance;  and  going  to  trial  afterwards, 
or  an  appeal,  after  verdict,  does  not  waive  it;  nor  does  the  verdict 
correct  it,  Barruel  v.  Irwin,  2  N.  M.  223.     I>o  plea  to  the  jurisdiction. 


GOODS  IN  THE  CUSTODY  OF  THE  LAW.       267 

of  an  inferior  court,  dependent  on  the  value  in  controversy  is  required, 
Chilson  V.  Jennison,  60  Mich.  235,  26  N.  W.  859. 

How  Jurisdiction  may  he  ousted  or  lost. — By  adjournment  to  a  legal 
holiday  the  court  does  not  lose  jurisdiction;  the  cause  stands  adjourned 
till  next  term.  Moore  v.  Herron.  17  Neb.  697,  24  N.  W.  425.  Where  the 
statute  allows  an  alternative  judgment  for  the  goods  or  their  value, 
jurisdiction  is  not  lost  by  the  removal  of  the  goods  to  another  state, 
Healey  v.  Humphrey,  27  C.  C.  A.  39,  81  Fed.  990.  The  jurisdiction 
is  not  ousted  by  a  mere  averment  in  the  answer  that  the  value  of  the 
goods  exceeds  the  jurisdiction;  the  plaintiff  is  entitled  to  go  to  trial 
upon  the  issue  so  formed,  Corbell  r.  Childers,  17  Ore.  528,  21  Pac.  670. 
Even  after  a  formal  order  of  discontinuance  upon  the  plaintiff's 
motion  the  court  may  retain  the  cause,  ascertain  the  value  and  the 
damage  sustained  by  the  defendant,  and  give  judgment  for  the  return, 
or  the  value,  and  damages,  Brannin  v.  Bremen,  2  N.  M.  40. 

In  Nebraska  the  County  Court  has  jurisdiction  where  the  value  of 
the  goods  does  not  exceed  one  thousand  dollars.  If  the  value  ascer- 
tained upon  the  trial  exceeds  one  thousand  dollars,  this  does  not  oust 
the  jurisdiction,  but  the  judgment  may  not  exceed  the  statutory  limit. 
Bates  V.  Stanley.  51  Neb.  252.  70  N.  W.  972.  And  upon  appeal  to  the 
district  court  the  defendant  may  have  judgment  for  return,  or  in  the 
alternative  for  the  value,  and  damages  for  the  detention,  even  though 
the  value  as  ascertained  in  that  court  exceeds  the  jurisdiction  of  the 
County  Court.  Id.  The  circumstance  that  upon  the  trial  of  an  appeal 
from  the  justice  of  the  peace,  the  title  to  land  is  brought  in  issue, 
does  not  deprive  the  Circuit  Court  of  jurisdiction,  nor  the  justice. 
Miller  v.  Cheney,  88  Ind.  466. 

Plea  to  the  Jurisdiction. — No  plea  to  the  jurisdiction  of  a  justice 
is  necessary,  Chilson  v.  Jennison,  60  Mich.  235.  26  N.  W.  859.  A  plea 
that  prays  judgment  of  the  writ.  "  for  that  the  value  of  the  property 
described  in  said  writ  exceeds  one  hundred  dollars,  contains  no 
averment  of  fact  and  is  bad,  Addison  v.  Burt,  74  Mich.  730,  42  N.  W. 
278. 

Remitittur. — Where  judgment  is  given  for  the  value  to  an  amount 
exceeding  the  jurisdiction,  a  remitittur  will  not  cure  the  excess;  be- 
cause plaintiff,  to  escape  payment  of  the  money  judgment,  would  be 
required  to  return  all  the  goods.  Bates  v.  Stanley,  51  Neb.  252,  70 
N.  W.  972. 

But  in  the  District  Court,  upon  appeal,  where  a  portion  of  the  goods 
had  been  awarded  to  each  party,  the  court  being  able  from  the  record 
to  distinguish  between  the  value  of  the  goods  awarded  to  plaintiff 
In  the  County  Court,  and  the  value  of  the  others,  and  it  appearing 
that  the  latter  had  been  disposed  of  and  could  not  be  returned,  all<)w<Ml 
defendant  to  file  a  rf-mltittur  as  a  condition  of  afTlrniing  the  Judg- 
ment to  the  extent  of  the  value  of  what  was  awarded  to  the  defendant, 
Bateu  V.  Stanley,  nupra. 

ConfiictH  of  Jurindiction. — GooiIh  taken  on  mesne  jnoccHH  may  bo 
replevied  in  a  different  court  of  the  Hame  ntate,  though  not  of  Buperior 


2C8  THE    LAW    OF    REPLEVIN. 

authority.  Wilde  v.  Rawles,  13  Colo.  583,  22  Pac.  897.  Where  by 
statute  the  court  appointed  to  control  the  administration  of  the  estate 
of  an  insolvent  debtor,  becomes,  upon  the  filing  of  an  assignment, 
possessed  of  the  estate  and  property  assigned,  one  claiming  the  goods 
included  within  the  assignment,  cannot  maintain  replevin  therefor 
in  another  court.  Hanchett  v.  Waterbury,  115  Ills.  220.  32  N.  E.  194; 
Colby  V.  O'Donnell,  17  Ills.  Ap.  473.  But  a  vendor  who  has  been  de- 
frauded of  his  goods  by  the  insolvent  and  has  rescinded  the  sale  in 
reasonable  time,  and  demanded  the  goods  from  the  assignee,  will 
be  awarded  the  goods  on  petition,  or  if  they  have  been  sold,  the 
proceeds  will  be  paid  to  the  vendor.  Phoenix  Co.  r.  Anderson,  78  Ills. 
Ap.  253.  Sec.  67  f  of  the  Statute  of  Bankruptcy  (30  Stat,  565  U.  S. 
Comp.  Stat.,  1901,  p.  3450),  applies  to  the  seizure  under  the  writ  of 
replevin;  any  such  seizure  of  property  of  an  insolvent  within  four 
months  prior  to  the  filing  of  the  petition  upon  which  he  is  adjudged 
a  bankrupt,  is  void,  In  Re  Weinger,  120  Fed.  875.  If  an  adverse  claim 
is  asserted  against  any  part  of  the  bankrupt's  estate  by  any  person, 
the  bankruptcy  court  has  jurisdiction  to  ascertain  whether  the  claim 
of  such  party  has  a  basis  in  fact,  and  is  bound  to  enter  upon  the' 
inquiry.  Id.  One  unlawfully  in  possession  of  goods  belonging  to  the 
bankrupt's  estate,  may,  by  order  of  the  bankruptcy  court  be  compelled 
to  surrender  them,  even  though  he  claims  under  process  from  a  state 
court  directed  to  himself  as  an  officer,  and  a  levy  made  obediently 
thereto,  if  such  levy  was  made  after  the  filing  of  the  petition  in  bank- 
ruptcy, Id.  The  courts  of  one  state  may  entertain  an  action  for  the 
recovery  of  sand  severed  from  lands  in  another  state  and  brought 
into  the  state  of  the  action,  McGonigle  v.  Atchison,  33  Kans.  726,  7 
Pac.  550.  Where  property  in  the  hands  of  the  marshal  under  process" 
from  the  federal  court  is  seized  under  a  writ  of  replevin  from  the 
state  court,  the  latter  should  adjudge  the  return  of  it,  or  payment  of 
the  value,  and  this  without  any  adjudication  of  the  merits  of  the 
plaintiff's  claim,  Cantrill  v.  Babcock,  11  Colo.  143,  17  Pac.  296.  18 
Pac.  342.  But  in  Williams  v.  Chapman,  60  la.  57,  14  N.  W.  89,  it  is 
held  that  in  such  case  the  proper  judgment  is  for  return  absolute  with- 
out any  alternative.  And  goods  attached  upon  mesne  process  from  a 
state  court  cannot  be  taken  in  replevin  upon  a  writ  issuing  from  the 
Circuit  Court  of  the  United  States,  Melvin  v.  Robinson,  31  Fed.  634. 
Goods  replevied  in  the  state  court,  cannot  be  taken  from  plaintiff,  by 
a  cross-replevin  in  the  federal  court,  Williams  v.  Morrison,  32  Fed. 
177.  The  marshal  may  effectually  relinquish  a  levy  which  he  has  made, 
and  if  he  do  so  he  can  never  reclaim  the  goods;  and  when  the  sheriff 
returns  that  he  has  taken  the  goods  under  a  writ  of  replevin  against 
the  marshal,  it  will  be  presumed  that  the  marshal  waived  his  levy, 
Weber  v.  Henry,  16  Mich.  399.  Where  goods  less  than  one  hundred 
dollars  in  value  were  seized  by  the  marshal  it  was  held  that,  inasmuch 
as  the  jurisdiction  of  the  Circuit  Court  of  the  United  States,  out  of 
which  the  marshal's  process  issued,  was  limited  to  cases  where  five 


GOODS  IN  THE  CUSTODY  OF  THE  LAW.       269 

hundred  dollars  or  more  was  involved,  exclusive  of  costs,  so  that  the 
ancillary  proceedings  contemplated  in  Freeman  v.  Howe,  24  How.  450, 
16  L.  Ed.  749,  would  not  lie  in  that  court,  the  owner  was  entitled 
to  maintain  replevin  in  the  state  court,  Carew  v.  Matthews,  41  Mich. 
576,  2  N.  W.  829.  In  Heyman  v.  Covell,  44  Mich.  332.  6  N.  W.  846 
the  jurisdiction  of  the  state  court  to  entertain  replevin  against  the 
marshal  of  the  United  States  lidding  the  goods  of  one  person  under 
a  final  process  against  another,  was  sustained.  The  reasoning  of  the 
Court  is  that  it  is  not  within  the  power  of  congress  nor  of  the  state 
legislature  to  deprive  the  owner  of  property,  or  of  the  right  to  vindicate 
his  title  by  appropriate  legal  process;  that  unless  in  such  case  a 
remedy  is  given  in  the  Federal  Court,  he  must  be  at  liberty  to  resort 
to  the  state  court;  that  the  only  remedy  suggested  by  the  court  in 
Freeman  r.  Howe,  was  a  bill  in  equity;  that  in  the  latter  case  of  Van 
Norden  v.  Morton,  99  U.  S.  378,  the  Supreme  Court  had  declared  that 
equity  had  no  jurisdiction;  that  as  there  is  no  jurisdiction  in  equity 
it  follows  that  a  common  law  action  is  the  proper  remedy;  and  as 
such  action  lies  in  the  Federal  Court  only  where  the  citizenship  is 
diverse,  as  in  such  case  the  jurisdiction  is  made  by  express  statute 
concurrent  with  that  of  the  state  courts,  there  was  no  ground  to  refuse 
the  redress  demanded.  But  upon  writ  of  error  from  the  Supreme  Court 
of  the  United  States,  this  judgment  was  reversed;  the  court  declaring 
that  the  doctrine  of  Freeman  iK  Howe,  is  equally  applicable,  whether 
the  goods  are  holden  under  mesne  or  final  process;  that  the  possession 
of  the  marshal  is  not  to  be  disturbed  under  process  from  the  state 
court;  and  that  the  only  remedy  of  the  owner  is  by  an  ancillary  bill 
in  the  Federal  Court;  the  identical  remedy  which  in  Van  Norden  v. 
Morton  was  rejected,  Covell  v.  Heyman,  111  U.  S.  176,  28  L.  Ed.  390. 

It  is  worthy  of  remark  that  in  Van  Norden  v.  Morton,  supra,  the 
decision  in  Freeman  v.  Howe,  was  not  called  to  the  attention  of  the 
court,  nor  is  the  decision  in  Van  Norden  v.  Morton  adverted  to,  or  at- 
tempted to  be  explained  in  Covell  v.  Heyman. 

In  Gumbell  v.  Pitkin,  124  U.  S.  131,  31  L.  Ed.  374.  it  was  again  held 
that  where  a  contest  arises  between  the  marshal  in  possession  under 
process  from  the  Federal  Court  and  a  third  person  claiming  under 
process  of  the  state  court,  the  appropriate  proceeding  of  the  latter 
is  by  petition  In  the  Federal  Court.  In  this  case  the  writ  under  which 
the  marshal  was  holding  possession  was  held  to  be  illegal  and  the 
court  declared  it  to  be  the  duty  of  the  marshal  to  surrender  the  goods 
to  the  officer  of  the  state  court,  and  niaile  order  aciordingly. 

The  dortrlne  that  the  marshal's  possession  under  process  from  the 
Federal  Court  cannot  be  disturbed  by  process  from  any  state  court. 
iH  reiterated  in  Denny  v.  Dennett,  128  U.  S.  489.  32  L.  Ed.  491;  lUo 
Grande  Co.  v.  VInet.  132  U.  S.  478.  33  L.  Ed.  400;  Hyers  v.  Macauloy, 
149  U.  S.  608.  37  L.  Ed.  867;  Moran  v.  Sturgea.  154  U.  S.  256.  38  L.  Kd. 
981.  The  officer  of  the  bankruptcy  court  is  under  the  uamc  protection, 
Wood  V.  Schloerb,  178  U.  S.  542.  44  L.  FA.  1183. 


270  THE    LAW    OF    REPLEVIN. 

§  283.  The  power,  duty  and  responsibility  of  the  sheriff 
in  serving  the  writ  of  replevin.  Tlie  it'sponsiljilities  of  the 
sheriff  in  serving  the  writ  of  rei)Ievin  are  consideralile,  ajid  with 
the  responsibility  imposed,  the  law  gives  a  corresponding  author- 
ity to  be  exercised  by  the  officer  in  his  own  protection.  An 
officer  has  immunity  for  acts  done  in  the  proper  discharge  of  his 
duty  in  executing  legal  process,  but  when  he  attempts  to  execute 
illegal  process,  or  legal  process  in  an  illegal  manner,  it  affords 
him  no  protection.™ 

§  284.  He  must  see  that  the  writ  is  in  form.  An  officer 
who  assumes  to  act  under  color  of  authority  of  law,  nuist  take  the 
responsibility  of  determiniiig  whether  the  law  has  given  him  the 
authority  which  he  assumes  to  exercise.  Thus,  an  officer  is  not 
justified  in  executing  an  order  or  process  which  is  void  on  its 
face,  or  which  the  court  has  no  jurisdiction  to  issue."  Neither 
has  he  a  right  to  execute  process,  however  legal  or  formal  it  be, 
in  any  other  than  a  legal  manner ;  as  when  the  statute  forbids 
service  on  Sunday,  he  would  have  no  lawful  authority  to  execute 
process  on  that  day."  It  therefore  becomes  the  duty  of  the 
officer  in  receiving  a  writ  of  replevin  to  see  that  it  is  substantially 
in  legal  form.  If  for  any  defect  on  its  face  it  is  void  or  inopera- 
tive, he  will  be  liable  as  a  trespasser  or  may  be  liable  for  the 
value  of  the  goods,  if  he  proceed  to  execute  it." 

§  285.  And  that  it  issues  from  a  court  of  competent  juris- 
diction. The  officer  must  also  decide  whether  the  court  had 
jurisdiction  to  issue  the  writ.  This  by  no  means  requires  him  to 
inquire  whether  the  court  acted  properly  in  issuing  the  writ,  for 
that  question  is  entirely  beyond  his  right  to  determine.  Neither 
is  he  called  upon  to  determine  the  rights  of  the  parties,  or  whether 
the  writ  was  properly  issued  or  not.  If  the  process  be  formal 
and  sufficient  on  its  face,  and  if  the  court  from  whence  it  issued 

'"Dri.scoll  V.  Place,  44  Vt.  258.  If  an  officer  levy  an  execution  after 
the  return  day  has  expired,  he  is  a  trespasser.  Vail  v.  Lewis,  4  .Johns. 
450.  Consult  Dynes  v.  Hoover,  20  How.  65;  Wise  v.  Withers,  3  Cranch. 
U.  S.  Sup.  Ct.  331;  Brown  v.  Compton,  8  Term.  R.  424;  Davison  v. 
Gill.  1  East.  64. 

"Leadbetter  v.  Kendall.  Hempst.  (U.  S.  C.  C.)  302;  Brown  v.  (Comp- 
ton. 8  Term.  R.  424  and  231;  Dynes  v.  Hoover,  20  How.  (U.  S.)  65; 
Wise  V.  Withers,  3  Cranch,   (U.  S.)   331. 

"^Peirce  v.  Hill,  9  Porter,  (Ala.)  151;  Allen  v.  Crary,  10  Wend.  349. 

"Dame  v.  Fales,  3  N.  H.  70. 


GOODS    IN    THE    CUSTODY    OF    THE    LAW.  271 

liad  jurisdiction  to  issue  such  a  writ,  it  will  be  a  complete  protec- 
tion to  him,  acting  in  obedience  to  its  commands,  so  long  as  he 
acts  within  the  scope  of  his  legal  duties  and  for  the  purpose  of 
obeying  its  commands.  He  is  to  emploj'  sufficient  force  to  ex- 
ecute its  mandates."*  But  if  he  have  knowledge  aliiaide  of  the 
want  of  jurisdiction  and  persists  in  executing  the  writ  notwitli- 
standing,  he  will  be  liable.'^  Or  where,  from  the  circumstances 
of  the  case  appearing  on  the  face  of  the  paper,  the  officer  can  see 
that  there  may  be  cause  to  suspect  that  process  apparently 
formal  has  been  improperly  issued,  he  ought  to  examine  into 
the  matter  to  see  that  it  is  regular  before  serving  it.''*  As 
where  under  the  statute  an  execution  must  issue  within  one 
year  after  judgment  is  rendered,  without  which  a  subsequent  ex- 
ecution is  void."  A  judgment  was  rendered  in  1863  and  no 
execution  issued  thereon  until  1869,  when  execution  was  issued 
and  return  nulla  bona.,  and  a  transcript  afterwards  taken  to  the 
circuit  court  and  another  execution  issued  thereon.  The  latter 
execution  was  held  no  protection  to  the  officer."'*  The  officer 
should  examine  the  description  of  the  projDcrty  in  the  writ,  and 
if  it  be  so  uncertain  that  he  cannot  distinguish  the  property,  or 
if  the  property  shown  him  be  essentially  different  from  the  goods 
described,  he  may  refuse  to  serve  the  process."  It  does  not 
follow  that  the  writ  which  may  be  sufficient  to  jirotect  the  officer, 
will  also  afford  the  same  justification  to  the  party .•*" 

§  286.  The  writ  does  not  authorize  a  seizure  of  goods 
from  the  person  of  the  defendant.  When  the  defendant  is 
wearing  a  wateh,  or  other  article,  either  of  ornament  or  apparel, 
the  writ  would  confer  no  authority  on  the  officer  to  seize  it  from 
his  person,  even  when  worn  for  the  jjurposc  of  keeping  it  from 

"Fulton  V.  Heaton,  1  Earb.  (N.  Y.)  552;  Ela.  v.  Shepard.  32  N.  H. 
277;  Colt  V.  Eves.  12  Conn.  251;  Young  v.  Wise.  7  Wis.  128;  SpraKue 
V.  Blrchard,  1  Wis.  458;  McLean  v.  Cook.  23  Wis.  305;  BoRert  t'.  Phelps, 
14  Wis.  88;  Landt  v.  Hilts.  19  Harb.  283;  Earl  v.  Camp.  Ifj  Wend.  5C3; 
Dominick  v.  Earker.  3  Rarb.   17;    BuKnall  t'.   Ablenian,  4   Wis.   1(53. 

"Sprague  v.  Ulrchanl.  1  Wis.  457;  Grace  v.  Mitchell,  31  Wis.  639;  Colt 
V.  Eves.  12  Conn.  243. 

"Bacon  v.  Cropsey,  3  Seld,  195. 

"Morgan  v.  Evans,  72  111.  580,  and  cases  cited. 

"Hay  V.  Hayes,  50  III.  343. 

"De  Witt  V.  Morris,  13  Wend.  495. 

"Brown  v.  Blssett,  1   Zab.  21.   (N.  J.)    40. 


272  THE    LAW    OF    REPLEVIN. 

sueli  s(Mzurp,  tlie  i)orson  of  the  dcfeiithxiit  being  free  from  moles- 
tation upon  process  of  this  nature."' 

§  287.  The  right  of  an  officer  to  break  and  enter  a  dwell- 
ing to  take  goods.  Tlie  <iuestion  as  to  wliether  an  ofliieer  lias 
a  ri^lit  to  break  and  enter  the  dwelling  of  the  defendant  to  serve 
a  writ  of  replevin.seems  to  present  itself  here.  Under  the  ancient 
common  law  the  right  and  duty  of  the  oflicer  was  unquestioned. 
A  man's  house  was  his  castle,  and  would  protect  his  jjcrson  or 
his  goods  from  seizure  on  civil  process,  but  the  wrongful  taking 
of  the  goods  of  another  was  looked  upon  as  little  better  than 
robbery,"  and  the  safeguards  thrown  around  a  dwelling-house 
would  not  privilege  the  owner  to  take  or  keep  the  goods  of  another. 
The  Statute  Westminister  1,  Chapter  17,  expressly  directed  the 
.sheriff  to  break  and  enter  a  dwelling  house  or  stronghold  to  make 
replevin  of  goods  therein  wrongfully  detained.  Autliorities  in 
modern  times  upon  this  question  are  meager,  but  it  has  been  held 
that  the  sheriff  had  a  right  to  enter  the  defendant's  house  to 
search  for  goods  described  in  a  writ  of  replevin,  and  that  the 
legality  of  his  entry  did  not  depend  on  the  fact  of  his  finding  the 
property  therein.  The  court  said,  "  It  would  be  strange  if  the 
defendant,  by  secreting  the  goods,  and  thus  adding  to  the  wrong- 
ful taking,  could  have  an  action  against  the  sheriff  in  coming  to 
search  for  what  he  has  good  reason  to  suppose  could  be  found 
there."  ^'  A  man's  house  is  not  a  castle,  nor  does  it  carry  any 
privilege  but  for  himself.  It  will  not  protect  a  stranger  who  may 
fly  there,  nor  will  it  protect  the  goods  of  another  brought  there 
to  avoid  a  lawful  execution.^* 

§  288.  Parties  bound  to  know  the  sheriff.  If  an  officer 
serves  the  writ  in  person  all  parties  are  bound  to  know  and  re- 
cognize hira.  So,  doubtless,  of  a  regularly  appointed  deputy  ;  but 
if  the  sheriff  appoint  a  special  deputy,  though  his  power  and 
authority  is  the  same  as  the  sheriff  to  serve  that  process,  yet  he 

"Maxham  v.  Day,  16  Gray,  213.  Nor  will  an  innkeeper  be  permitted 
to  assert  a  lien  on  the  garments  which  his  guest  is  wearing  on  his 
person.     Sunbolp  v.   Alford,  3  Mees  &  W.  249. 

*^  Gilbert  on  Rep.   70;    Britton,  title  Replevin. 

*^Kneas  v.  Fitler,  2  S.  &  R.  (Pa.)  265. 

'^Semaney's  Case,  5  Coke,  91.  The  sheriff  may  break  and  enter  a 
barn  or  outhouse  to  serve  an  execution.  See  M'Gee  v.  Given,  4  Blackf. 
18,  note;  Haggerty  v.  Wilber.  16  Johns.  287.  See  cases  in  State  v. 
Smith.  1  N.  H.  346. 


GOODS    IN    THE    CUSTODY    OF    THE    LAW.  273 

would  be  obliged  to  show  his  authority,  if  it  were  questioned,  as 
the  defendant  is  under  no  obligation  to  recognize  liim  without  it."* 

§  289.  Duty  of  the  sheriff  to  take  bond  ;  his  liability  in 
respect  to  the  bondsmen.  The  law  required  the  sheriff  to 
take  bond  from  the  plaintiff,  with  two  securities,  conditioned  that 
he  would  duly  prosecute  the  suit,  or  make  return,  etc.,  and  held 
the  sheriff  responsible  for  the  solvency  of  these  securities ;  not 
only  that  they  were  solvent  when  accepted  by  the  sheriff,  but 
that  they  should  continue  so  down  to  the  time  when  thej'  should 
be  legally  called  upon  to  make  good  the  conditions  of  their  bond.^ 
The  harshness  of  this  rule  has  been  greatly  modified  of  late.  And 
so  far  has  the  change  in  this  direction  been  carried  in  many  of 
the  States  that  the  statute  provides  a  method  by  which  the  de- 
fendant may  except  to  the  bondsmen  of  the  other  party  within  a 
limited  time,  and  in  case  of  failure  to  do  so  within  that  time  he  is 
precluded  from  doing  so  afterwards."  And  the  sheriff  is  not 
liable  unless  a  formal  exception  is  sustained.^  But  if  the  securities 
fail  to  justify  when  excepted  to,  the  sheriff  is  liable."' 

§  290.  Extent  of  the  sheriff's  liability.  The  question  has 
arisen  as  to  the  extent  of  the  sherift"s  liability ;  whether  it  is 
limited  by  the  amount  of  the  bond,  or  whether,  in  case  the  real 
damage  sustained  exceeds  that  amount,  the  sheriff  should  be  held 
for  the  real  damages.  The  penalty  in  the  bond,**^  where  the  suit 
is  for  taking  insufficient  security,  is  usually  the  limit  of  damages. 
But  where  the  sheriff  fails  to  take  any  bond,  or  takes  bond  in  a 
sum  less  than  double  the  value  of  the  property,  the  injured  i)arty 
may  unquestionably  recover  the  real  damages  he  has  sustained."" 
By  statutes  in  some  of  the  States,  the  clerk,  not  the  sheriff,  takes 
the  security,  which  may  be  excepted  to  by  the  opposing  party,  if 
he  think  it  insufficient.-  The  general  rule,  however,  recfuires  the 
sheriff  to  take  ])r>nd  from  the  plaintiff  before   serving  the  writ^ 

•Burton  v.  Wilkinson,  18  Vt.  ISfi.  See.  also,  Alexander  v.  nurnhani, 
18  Wis.  200;  State,  etc..  ex  rel.  v.  Williams,  5  Wis.  308,  and  note  to 
new  ed.  p.  631. 

"Grant  v.  Booth,  21  How.  Pr.  Rep.  354. 

"Clinton  V.  King,  3  How.  Pr.  Rep.  SG;  Weed  v.  Hinton.  7  Hill.  157; 
Burns  v.  RoJjbins,  1  Code  R.  C2. 

-Wilson  V.  WiilianiH,  18  Wend.  fjSl. 

•  Ho*?fh»;lner  v.  Canii)l)ell.  1   Luc.   (10  Mod.)    157. 

•"Evans  v.  FJrandc-r,  2  H.  Ilia.  r..'',7;  Jeffrey  v.  Bastard.  1  Ad.  &  E.  823. 

•'  People,  etc.,  v.  Core,  80  III.  248. 
18 


274  THE    LAW    OF    REPLEVIN. 

niul  tilt'  writ  cannot  be  executed  by  delivery  of  the  property  un- 
less the  bond  provided  ])y  statute  Ije  given.'-"  And  if  he  omits  to 
require  such  bond  as  the  statute  provides,  he  is  liable  to  the  de- 
fendant for  failure  to  take  bond. 

§  291.  Return  by  sheriffofgoods  wrongfully  seized  by  him. 
When  the  sheriff  wrongfully  took  propci'ty  from  a  person  other 
than  the  defendant  named  in  the  attachment,  and  afterwards, 
to  a  suit  for  such  wrongful  taking,  he  answered  tliat  he  had 
returned  the  property  to  the  parties  from  whom  he  took  it;  ]icld^ 
immaterial.  The  answer  did  not  allege  a  return  to  the  plaintiff 
or  any  one  by  him  authorized  to  receive  it.  The  party  Avho  had 
it  may  himself  have  been  a  wrongdoer  ;  or,  suppose  the  property 
was  seized  while  in  the  hands  of  a  drayman,  being  moved  from 
one  point  to  another ;  a  return  to  the  drayman  would  not  con- 
stitute a  defense  to  the  claim  of  the  owner.^'  The  plaintiff  sues 
for  a  taking  or  detention  of  the  goods  from  him,  and  it  is  no 
answer  to  his  claini  to  say  they  have  been  voluntarily  delivered 
to  another. 

§  292.  Duty  of  the  sheriff  on  receiving  a  writ  of  replevin. 
It  is  the  duty  of  the  sheriff,  on  receiving  a  writ  of  replevin,  to 
execute  it  in  the  manner  required  by  the  statute,  wiiich  should 
be  his  guide.  He  must  serve  it  on  the  defendant  in  person,  if  he 
can  be  found  ;  but  a  seizure  and  delivery  of  the  property  must  be 
made  where  that  can  be  done,  whether  personal  service  is  had  on 
the  defendant  or  not."*  lie  must  make  all  reasonable  efforts  to 
find  the  goods.  If  he  cannot  do  so  without,  he  nmst  search  and 
inquire.  If,  influenced  by  vague  rumors,  he  returns  the  writ 
without  obtaining  the  goods,  when  they  could  have  been  found 
by  search  and  inquiry,  he  will  be  liable.*^  The  writ  will  some- 
times be  of  no  avail  to  the  parties  unless  served  promptly ;  and 
wdiile  the  sheriff  is  not  bound  to  lay  aside  all  other  business  to 
attend  to  it,  he  is  bound  to  use  all  reasonalde  endeavors  to  ex- 
ecute the  process,  so  that  it  may  take  effect  as  the  party  designed.''* 

^  Smith  V.  McFall.  18  Wend.  521;  Wilson  v.  Williams,  18  Wend.  581; 
Milliken  v.  Selye,  6  Hill.  623. 

"Caldwell  v.  Arnold,  8  Minn.  265. 

"  Abrams  v.  Jones  et  al.,  4  Wis.  806. 

«Bosley  v.  Farquar,  2  Blackf.  66. 

''Hinman  v.  Borden,  10  Wend.  367;  Whitney  v.  Butterfield,  13  Cal. 
339;  Lindsay   Exrs.    v.   Armfield,    3   Hawks.    (N.   C.)    548;    Kennedy    v. 


GOODS  IN  THE  CUSTODY  OF  THE  LAW.       275 

In  New  York,  when  the  sheriff  has  seized  property  under  a  writ 
of  replevin,  he  is  not  bound  to  deliver  it  to  the  plaintiff  before 
the  securities  on  the  bond  have  been  accepted,  or  justified,  and 
during  the  time  the  goods  remain  in  his  possession,  he  is  not  an 
insurer  of  them,  but  is  bound  to  use  such  care  of  the  goods  as  a 
careful  man  would  exercise  with  his  own  property  ;  whether  he 
has  done  so  or  not,  is  a  question  for  the  jury.^'  It  has  been  held 
that  if  the  sheriff  leaves  goods  in  the  hands  of  the  debtor,  taking 
security  for  their  delivery,  or  payment  of  the  debt,  he  becomes 
liable  if  they  are  destroyed  by  fire  or  otherwise,  except  by  act  of 
God  or  the  public  enemy."^ 

§  293.  Duty  of  the  sheriff  with  respect  to  severing  articles 
claimed  to  be  real  estate.  One  of  the  most  difficult  questions 
touching  the  power  and  duty  of  the  sheriff',  is,  when  he  is  called 
upon  to  serve  the  writ  of  replevin  by  taking  and  delivering  prop- 
erty apparently  real  estate,  and  which  requires  to  be  severed  from 
the  realty,  to  enable  the  officer  to  obey  the  command  of  the  pro- 
cess. The  writ  is  effectual  for  the  delivery  of  personal  property 
only,  and  furnishes  no  justification  to  an  officer  who,  in  attempting 
to  serve  it,  severs  and  delivers  part  of  the  realty.®"  So  when  suit 
was  for  rails,  when  defendant  had  built  part  of  them  into  a  fence 
before  the  writ  was  served,  it  was  said  those  built  into  the  fence 
were  real  estate,  and  could  not  be  taken.'""  This  rule  undoubtedly 
governs  in  all  cases.  The  sheriff  is  liable  as  a  trespasser  if  he 
severs  any  part  of  the  realty  and  delivers  it,  even  though  it  is  the 
identical  property  described  in  the  writ.  Hut  the  sheriff  is  also 
liable,  if  he  refuse  to  serve  the  writ  by  delivering  personal  prop- 
erty therein  described  under  pretense  that  it  is  real  estate,  unless 
such  is  really  the  ease,  and  he  nmst  assume  the  responsibility, 
and  act  or  refuse  to  act,  as  he  shall  judge  projier.  But  in  cases 
where  there  can  be,  and  jjrobably  is,  an  honest  dillerence  of  opin- 
ion, and  the  property  is  dcsc'ribed  as  personal  property  in  tlie 
affidavit  and  the  writ,  the  sheriff  ougiit  to  take  proper  indemnity 

Brent,  G  Cranrh,  187;  Payne  v.  Drews,  4  East,  523;  Van  Winkle  v. 
Udall.    1    Hill.  559. 

"Moore  v.  Wostorvelt.  21  N.  V.  103;  Moore  v.  Wostorvelt.  1  Bos.  (N. 
Y.)   358.     See  Rives  t'.  Wllborne.  •;  Ala.  45. 

•"  Browning  v.  Hanford,  5  Denio,  58C. 

"Roberts  v.  The  Dauphin  Hank,  19  I'a.  St.  75;  RIc  ketts  v.  Dorrcl,  55 
Ind.  470. 

'"Bowen  v.  Tallman,  5  S.  &  W.  ( Pa  )  500. 


276  '       THE    LAW    OF    REPLEVIN. 

from  tlu'  parties  and  execute  the  writ,  giving  the  defendant  due 
opportunity  to  restrain  if  he  wishes  to  do  so."" 

§  U94.  The  liability  of  the  officer  a  personal  one.  The 
ofltieer  sliould  bear  in  mind  that  any  act  done  under  color  of  his 
office  affecting  the  rights  of  parties  not  named  in  the  Avi'it,  may 
render  him  liable  as  a  trespasser.'"'  So  any  failure  or  neglect  on 
his  part  to  serve  the  writ  in  a  proper  and  legal  manner,  within 
the  proper  time,  may  subject  him  to  an  action  at  the  hands  of  the 
injured  party,'"'  and  an  illegal  service  may  render  him  liable  to 
the  defendant.  His  liability  is  a  personal  one,  and  his  official 
position  does  not  change  it.  Where  he  is  guilty  of  an  act  of  tres- 
pass, judgment  against  him  must  be  satisfied  out  of  his  individual 
property,  and  his  resignation,  removal,  or  the  expiration  of  his 
term,  will  not  change  his  liability.'"*  Therefore,  when,  a  reason- 
able doubt  exists,  he  is  not  compelled  to  proceed  without  indem- 
nity from  the  party  in  whose  behalf  he  is  acting.'"^  When  the 
law  requires  the  officer  to  act,  as  to  acts  done  in  the  performance 
of  his  duty,  it  will  favor  a  presumption  that  he  has  performed  it, 
and  the  burden  of  sliowing  to  the  contrary  is  on  the  other  party.'"* 
The  act  of  the  deputy  in  seizing  property  is  the  act  of  the  sheriff, 
and  the  possession  of  the  deputy  is  the  possession  of  the  sheriff."" 
So  the  possession  of  a  bailiff  or  custodian  is  the  possession  of  the 
sheriff,  and  while  the  custodian  may  liave  a  sufficient  possession 
to  be  made  a  defendant  in  replevin,  it  by  no  means  follows  that 
the  oflBcer  is  not  also  liable.'"*  When  a  party  obtains  a  valid  writ 
of  replevin  against  a  sheriff,  the  officer  should  obey  the  writ  by 

'"'Elliott  V.  Black,  45  Mo.  374;   Hamilton  v.  Stewart,  59  111.  331. 

'"=  State  r.  .Jennings,  14  Ohio  St.  78;  Moulton  v.  Jose,  25  Me.  76;  Cald- 
well V.  Arnold,  8  Minn.  265. 

""  Brown  v.  Jarvis,  1  Mees.  &  W.  704. 

'*•  Stillman  v.  Squires,  1  Denio,  328. 

"« State  V.  Jennings,  14  Ohio  St.  78;  Colt  v.  Eves,  12  Conn.  243. 
[Martin  v.  Bolenbaugh,  42  Ohio  St.  508;  Wolf  v.  McClure,  79  Ills.  564. 
A  bond  reciting  that  the  goods  are  claimed  by  another  and  conditioned 
to  pay  "  all  costs,  charges  and  expenses  to  which  he  may  be  subject 
In  consequence  of  the  seizure  and  detention  of  the  goods,"  is  a  valid 
obligation,  and  the  sheriff  may  resort  to  it  for  indemnity.  Martin  v. 
Bolenbaugh,  supra;  although  the  ground  of  recovery  against  the  sheriff 
was  his  default  in  omitting  to  take  a  replevin  bond,  Id.] 

'«Shorey  r.  Hussey,  32  Me.  580. 

""  Stillman  v.  Squires,  1  Denio,  328. 

'*  Ralston  v.  Black,  15  Iowa,  48. 


GOODS    IN    THE    CUSTODY    OF    THE    LAW.  277 

surrendering  the  goods  in  obedience  to  the  process,  but  his  refusal 
to  do  so  does  not  make  liiiii  a  trespasser  in  the  taking.'"^ 

§  liOo.  The  sheriff  hable  for  the  act  of  his  deputies.  The 
sheriff  is  liable  for  all  the  acts  of  his  deputies  in  their  official 
capacity.  In  tlie  view  of  the  law,  all  the  deputies  are  but  the 
servants  of  the  sheriff'."" 

§'296.  Disputes  between  deputies  of  the  same  sheriff 
settled  by  the  sheriff.  Disputes  between  deputies  of  the  same 
sheriff'  as  to  the  possession  of  property  which  both  have  levied 
on,  should  be  settled  by  the  sheriff;  neither  deputy  has  any 
technical  property  in  the  thing.  The  sheriff  has  to  answer  one 
or  both  the  attaching  creditors,  and  must  settle  the  dispute.'" 

§  297.  The  officer's  return.  The  return  of  the  officer 
should  be  made  without  delay."-  It  must  distinctly  and  clearly 
set  out  his  acts,  under  the  authority  of  the  writ.  If  a  part  of  the 
property  only  has  been  taken,  the  return  must  show  what  part, 
so  that  from  the  return  alone,  the  court  can  see  what  has  been 
done.  Otherwise,  upon  an  order  for  a  return  of  the  property  re- 
plevied, or  on  a  question  arising  as  to  what  was  actually  delivered, 
a  dispute  might  arise  and  tlie  court  have  no  certain  means  of  de- 
termining."' As  to  matters  material  to  be  returned,  it  is  so  far 
conclusive  that  it  cannot  be  contradicted  or  avoided  in  the  suit, 

•"Walker  v.  Hampton,  8  Ala.  412;  Cole  r.  Conolly,  10  Ala.  271;  Six 
Carpenter's  Case,  8  Co.  Rep. 

"•Grinnell  v.  Phillips,  1  Mass.  530;  Miller  r.  Bakor.  1  Met.  27;  Tuttle 
V.  Cook,  15  Wend.  274;  The  People  r.  Schuyler.  4  Comst.  173;  Poinsett  v. 
Taylor,  6  Cal.  78;  King  v.  Chase,  15  N.  II.  9;  King  v.  Orser.  4  Duer. 
431;  People  v.  Brown,  G  Cow.  41;  Terwillinger  v.  Wheeler,  35  Barb.  G20. 
But  not  for  the  act  of  his  deputy  in  levying  a  distress  warrant  illegally; 
in  such  case  he  acts  as  bailiff  of  landlord.  Moulton  v.  Norton,  5  Barb. 
286.  See  Vanderbilt  r.  Richmond  Co.,  2  Comst.  479;  Cotton  v.  Marsh, 
3  Wis.  240.  In  Vermont,  the  deputy  seems  to  have  an  action  in  his 
own  name  for  any  interference  with  property  seized  by  him.  Stan- 
ton V.  Hodges,  G  Vt.  64. 

"' Perley  v.  Foster,  9  Mass.  112;  Ackeworth  v.  Kemp,  Doijglas.  40; 
Woodgate  v.  KnatchbuU,  2  D.  &  East.  150.  Contra,  see  Gordon  v. 
Jenney,  16  Mass.  469,  where  it  is  held  that  deputies  act  independently 
of  each  other,  and  that  one  of  them  can  maintain  replevin  against 
another,  of  the  same  flieriff. 

"*  Hutchinson  v.   McClellan.   2  Wis.  17. 

'"Mattlngly  v.  Crowley.  42  111.  300;  Pool  v.  Loomls.  5  Ark.  110;  Miller 
V.  MoHCH,  56  Me.  134;  Nashville  Ins.  Co.  v.  Alexander,  10  Humph. 
.(Tenn.)  378; 


278  THE    LAW    OF    REPLEVIN. 

for  the  purpose  of  defeating  any  rights  which  have  been  acquired 
by  the  parties  under  it;"*  but  the  return  of  collateral  facts  may 
be  traversed."^ 

§  298.     As  to  the  service  of  a  writ  of  replevin.     Where,  as 
is  the  ease  in  replevin,  the  writ  points  out  the  precise  thing  to  be 
done  or  the  speeitic  ])roperty  to  be  seized,  the  officer  has  no  dis- 
cretion.    He  must  take  the  goods  if  found  in  the  defendant's  pos- 
session, and  where  he  does  so,  the  court  will  protect  him  in  obey- 
ing its  mandate.'"^     This  rule  is  illustrated   in  AViseonsin,  in  a 
case  where  an  attachment  for  a  laborer's  lien  was  sued  out.     The 
writ  commanded  the  officer  to  attach  the  identical  property  and 
replevin  was  not  permitted,  the  lien  being  against  that  particular 
property,"'  and  the  writ  was  regarded  as  a  protection  to  the  offi- 
cer in  retaining  possession  of  the  property.""     When  an  action  of 
trespass  was  brought  against  an  officer  for  taking  away  a  horse, 
under  a  writ  of  replevin  which  commanded  him  to  cause  the 
beast  of  the  plaintiff,  "  impounded  or  distrained,"  to  be  replevied, 
etc.     The  horse  replevied  was  not  distrained  or  impounded  and 
the  officer  knew  it,  and  it  was  contended  that  the  officer  ought 
not  to  have  served  the  Avrit,  and  that  in  so  doing  he  became  a 
trespasser ;  the  court,  however,  held  that  the  defendant  was  a 
legal  officer  and  that  it  was  his  duty,  regardless  of  any  supposed 
knowledge  of  his  own  that  there  existed  no  cause  of  action,  to 
serve  the  writ  committed  to  him  ;  that  the  writ,  valid  on  its  face, 
Avas  a  protection,  and  it  was  no  part  of  his  duty  to  determine  that 
the  replevin  was  improperly  issued ;  his  duty  was  to  obey  the 
writ."'     As  has  been  shown,  the  statute  in  many  of  the  States 
gives  the  defendant  the  right  to  interpose  a  claim  of  property,  to 
give  bond  and  retain  the  property  in  his  possession  until  the 

'"Knowles  v.  Lord,  4  Whart.  (Pa.)  500;  Cornell  v.  Cook,  7  Cow. 
(N.  Y.  )  310;  Messer  v.  Baily,  11  Fost.  (X.  H.)  9;  Pardee  v.  Robertson, 
6  Hill,  (N.  Y.)  550. 

"=  Brown  v.  Davis,  9  N.  H.  76;  Messer  v.  Baily,  11  Fost.  (N.  H.)  9; 
Augier  v.  Ash,  6  Fost.  (N.  H.)  99;  Lewis  v.  Blair,  1  N.  H.  69;  Evans  v. 
Parker,  20  Wend.  622;  Browning  v.  Hanford,  5  Denio,  586.  In  a  suit 
against  an  officer  for  taking  property  by  replevin,  the  return  of  the 
officer  cannot  be  read  against  him  without  reading  the  writ.  Weinberg 
V.  Conover,   4  Wis.  803. 

"'Buck  V.  Colbath,  3  Wall.    (Sup.  Ct.)    334. 

"^  Union  Lumber  Co.  v.  Trouson,  36  Wis.  129. 

"'Griffith  V.  Smith,  22  Wis.  647;  Battis  v.  Hamlin,  22  Wis.  669. 

"•Watson  V.  Watson,  9  Conn.  140. 


GOODS    IN    THE    CUSTODY    OF    THE    LAW.  279 

rights  of  the  contestants  are  determined.  "When  the  defendant 
chiims  the  property,  the  sheritf  ought,  in  the  absence  of  any 
statute  fixing  time,  to  allow  him  a  reasonable  time  within  which 
to  give  bond  to  retain  the  possession,  and  in  an  action  of  trespass 
against  the  sheritf,  the  writ  will  be  no  protection  unless  such 
time  is  allowed.'^* 

§  299.  Effects  of  the  replevin  of  property  seized  on  exe- 
cution. The  levy  of  an  execution  will  operate  as  a  satisfaction 
of  it,  sub  moclo.  Even  though  the  property  should  be  replevied 
the  bond  is  regarded  as  an  indemnity,  and  the  sheriff  cannot 
make  any  other  or  further  levy  upon  that  execution.  If  the  re- 
sult of  the  suit,  however,  is  against  the  officer,  the  levy  is  not 
payment  of  the  debt.'-' 

§  300.  Special  property  created  by  a  levy  on  goods.  An 
officer  who  has  seized  property  on  a  writ  of  execution  or  attach- 
ment has  such  a  special  property  therein  as  will  sustain  replevin 
or  trover.'--  This  is  founded  on  the  officer's  responsibility  for  the 
safe-keeping  of  the  goods  in  his  custody  as  well  as  his  duty  and 
responsibility  under  his  process.'"  And  a  sale  on  such  process 
conveys  all  the  title  which  tlie  defendant  in  the  process  had."* 
When  the  officer  has  delivered  the  goods  to  a  receiptor  for  safe- 
keeping the  officer  is  regarded  as  still  in  possession,  and  he  may 
maintain  trover  for  them.'"  When  a  marshal  of  an  incorporated 
town  seized  goods  by  virtue  of  a  legal  process,  and  they  were  un- 
lawfully taken  from  him,  he  was  allowed  to  sustain  replevin 
agaijist  the  wrong-doer. '•''' 

§  301.  Justification  by  an  officer.  When  an  officer  justifies 
his  taking  under  a  writ  of  attachment  or  an  execution,  the  }»lea 
should  state  the  nature  of  the  writ,  and  the  court  or  authority 
under  which  the  same  was  issued.  It  should  also  state  what  the 
commands  of  tlie  writ  were,  so  that  the  court  may  see  what  he 
has  done,  and  whetiier  he  has  obeyed  the  writ  or  not.     Tb(^  pU'a 

'"Hocker  v.  Strieker,  1   Dall.  225,  245. 

'"  Hunn  V.  Houfih.  5  Heisk.  713. 

'"Lockwood  V.  null.  1  Cow.  322;  Polite  v.  Jeffprson.  5  Har.  (Del.) 
338;   Norton  v.   People.  8  Cow.  137;   Dezell   v.  Odeil,  3   Hill.  215. 

'"Lathrop  v.  Blake,  3  Fofiter,   (N.  H.)   50. 

"*  O'Connor  v.  Union  Line.  31  Ml.  230;  Hazzanl  r.  H.iitoii,  t  ll;u. 
(Del.)   62. 

'"Norton  v.  The  People.  S  Cow.  137;   Dozell  v.  O.lcll.  3  Hill.  215. 

>*•  Fitch  V.  Dunn,  3  Ulackf.  142. 


280  THE    LAW    OF    REPLEVIN. 

should  also  show,  if  such  be  the  fact,  that  the  plaintiff  in  replevin 
was  the  defendant  in  the  process,  and  in  all  cases  that  the  goods 
belonged  to  the  defendant  in  the  process  and  were  taken  from  him, 
or  on  the  process  against  him,  and  are  in  the  custody  of  the  law.'" 
But  in  some  States  the  plea,  or  answer  of  general  denial,  is  held 
broad  enough  to  permit  an  officer  who  is  defendant  to  show  that  ho 
has  taken  the  property  upon  process,  and  that  the  goods  belong  to 
the  plaintiff,  or  to  the  ])laintilf  and  another  jointly,  and  were 
seized  upon  process  against  him.'-"* 

"' Whittington  v.  Bearing,  3  J.  J.  Marsh,  (Ky.)  G84;  McCarty  v. 
Gage,  3  Wis.  404;  Richardson  v.  Smith,  29  Cal.  529;  Parsley  v.  Huston, 
3  Blackf.  348;  Dillon  v.  Wright,  4  J.  J.  Marsh,  (Ky.)  254.  See.  also, 
Stephens  v.  Frazier,  2  B.  Mon.  (Ky.)  250;  Gentry  v.  Bargis,  6  Blackf. 
2C2;  Dillon  v.  Wright,  4  J.  J.  Marsh,  (Ky.)  254;  Bridges  v.  Layman, 
31  Ind.  384;  Truitt  v.  Revill,  4  Har.  (Del.)  1.  The  process  need  not 
be  copied,  but  must  be  set  up.  Parsley  v.  Huston,  3  Blackf.  348; 
Wheeler  v.  McCorristen,  24  111.  42;  Van  Namee  v.  Bradley,  69  111.  301; 
Mt.  Carbon  Coal  Co.,  etc.,  v.  Andrews,  53  111.  185.  For  a  form  of  plea 
in  such  case,  see  Lammers  v.  Meyer,  59  111.  216. 

'=■' Branch  v.  Wiseman,  51  Ind.  1.  When  the  sheriff  pleaded  that  the 
property  belonged  to  A.  and  B.  and  that  he  had  seized  it  under  an 
attachment  as  sheriff;  held,  that  it  might  be  regarded  as  a  plea  of 
property  in  a  third  person.  Levi  v.  Darling,  28  Ind.  498;  Martin  v. 
Watson,  8  Wis.  315. 

Note  XVII.  Justification,  Oenerally. — The  sheriff  cannot  as  against 
the  true  owner,  justify  under  a  levy  upon  execution  against  a  mere 
trespasser,  even  though  in  actual  possession,  Post  v.  Berwind  Co.,  176 
Pa.  St.  297,  35  Atl.  111.  Replevin  lies  against  an  officer  who  seizes  the 
goods  of  one  person  upon  a  writ  against  another.  Pike  v.  Colvin,  67 
Ills.  227,  Welter  v.  Jacobson,  7  N.  D.  32,  73  N.  W.  G5,  even  though  the 
officer  levies  only  upon  the  interest  of  the  defendant  in  the  writ, 
if  he  has  no  interest,  Leonard  v.  McGinnis,  34  Minn.  506,  26  N.  W. 
733.  An  officer  is  not  protected  in  wrong-doing  by  the  order  of  his 
superior  officer,  Fiedler  v.  Maxwell,  2  Bl.  C.  C.  552;  nor  under  a  writ 
issued  by  a  clerk  of  one  court  upon  the  judgment  of  another  court;  nor 
under  adequate  process  if  he  is  assuming  to  act  beyond  the  limits  of  his 
county,  Dederick  v.  Brandt,  16  Ind.  Ap.  264,  44  N.  E.  1010.  And  the 
sheriff  who  takes  the  goods  of  A  under  process  against  B  cannot  de- 
fend by  showing  that  he  delivered  them  to  a  third  person  upon  the 
order  of  court  in  a  suit  in  which  the  owner  was  not  party.  Wise  v. 
.lefferis,  2  C.  C.  A.  432,  51  Fed.  641.  Nor  can  the  officer  who  levies  an 
attachment  at  the  suit  of  an  agister  assert  a  lien  in  favor  of  the  agister 
for  the  same  demand  mentioned  in  his  writ,  upon  the  identical  animals 
attached;  he  must  justify  under  his  process  or  fail,  Houck  v.  Lynn,  48 
Neb.  228,  66  N  W.  1103.  A  receipt  by  the  sheriff  to  an  execution  de- 
fendant  for  a   sum   of  money,   "  to  be   applied "   upon   the   execution, 


GOODS  IN  THE  CUSTODY  OF  THE  LAW.       281 

§  302,  The  defense  by  sheriff  when  goods  seized  are  re- 
plevied from  him.     The  sheiitf,  in  levying  uii  execution  or  at- 

"  provided  said  execution  be  just  and  legal,"  does  not  impose  upon  the 
sheriff  the  duty  to  institute  an  action  to  determine  the  legality  of  the 
process;  so  construed  it  would  be  invalid  for  want  of  consideration, 
and  because  opposed  to  good  policy,  Richards  v.  Nye,  5  Ore.  382.  At 
the  most  such  receipt  only  imports  an  undertaking  to  retain  the  money 
until  return  day  of  the  writ  to  enable  defendant  to  assail  it;  if  no 
proceedings  are  then  instituted  the  sheriff  may  then  lawfully  offer  the 
money  to  the  creditor,  Id.  How  far  a  Stranger  to  the  Writ  may  assail 
it,  or  the  Officer's  Conduct. — A  stranger  who  replevies  goods  found  in 
possession  of  the  sheriff  under  execution  against  a  third  person  cannot 
object  that  the  execution  is  without  seal,  Broadwell  v.  Paradice,  81 
Ills.  474.  Defects  in  process  which  are  waived  by  the  parties  cannot 
avail  a  stranger,  Dogan  v.  Bloodworth,  56  Miss.  419.  An  oflBcer's  levy 
cannot  be  questioned  for  excess  by  a  stranger  to  the  writ,  Pugh  v. 
Calloway,  10  0.  St.  495. 

Process  Fair  on  its  Face. — The  officer  may  justify  under  a  writ  fair 
upon  its  face,  from  a  court  of  competent  jurisdiction,  though  the  judg- 
ment is  void,  Adams  v.  Hubbard,  30  Mich.  104;  MuUer  v.  Plue,  45 
Neb.  701,  64  N.  W.  232;  Hartlep  v.  Cole,  101  Ind.  458.  Even  though 
the  writ  issues  from  a  court  of  limited  jurisdiction,  Norcross  v.  Nunan, 
61  Calif.  640;  or  from  one  exercising  de  facto  the  office  of  justice 
of  the  peace.  And  such  process  emanating  from  one  who  exercises  the 
office  under  color  of  right,  and  who  is  not  a  mere  intruder  is  a  pro- 
tection not  only  to  the  ministerial  officer  who  executes  it,  but  to  the 
plaintiff  in  the  writ,  and  it  seems,  to  the  justice  himself,  Hamlin  v. 
Kassafer,  15  Ore.  456,  15  Pac.  778. 

Where  process  is  fair  upon  its  face  it  is  the  duty  of  the  sheriff  to 
levy  it;  he  is  not  concerned  with  the  question  how  the  judgment  was 
obtained.  Baker  v.  Shehan.  29  Minn.  235,  12  N.  W.  704.  The  officer 
is  not  affected  by  defects  in  the  proceedings  upon  which  the  writ  is 
founded,  Brichman  v.  Ross,  07  Calif.  601,  8  Pac.  316;  Norcross  v. 
Nunan,  61  Calif.  040;  nor  is  the  protection  of  the  process  lost  by  the 
failure  of  the  plaintiff  to  enter  the  action,  Hall  v.  Monroe,  73  Me.  123. 

And  the  writ  is  admissible  in  evidence  in  connection  with  the  affl- 
davit  and  bond  upon  which  it  issued,  though  these  latter  are  defective, 
Brichman  v.  Ross,  supra.  An  attachment  fair  upon  its  face  and  issued 
from  a  court  having  jurisdiction  of  the  subject  matter  and  the  parties, 
protects  tho  officer  in  levying  upon  (he  goods  of  the  deft'iulant  (herein 
though  they  are  found  in  possession  of  another,  Matthews  v.  Donsmore, 
109  U.  S.  21C,  27  L.  Ed.  912.  And  the  officer  is  protected  by  a  process 
regular  upon  ItK  face,  though  the  defendant  therein  named  Is  in  fact 
dead,  Meyer  v.  Hearst,  75  Ala.  390.  The  sheriff,  attaching  goods  upon  a 
writ  valid  upon  Its  face,  will  not  be  adjudged  to  surrender  to  one  show- 
ing no  right,  Bruce  v.  Squires,  68  Kans.  199.  74  Pac.  1102.  But  process 
which,  though  regular  upon  its  face,  Is  void  in  fact;   c.  g.,  where  the 


2S2  THE    LAW    OF    REPLEVIN. 

tachnient,  assimies  the  responsibility  that  the  goods  levied  on  be- 
long to  the  defendant  named  in  the  proeess,  and  if  the  goods  are 

judgment  defendant  was  dead  at  the  entry  of  the  judgment,  cannot 
be  used  to  build  up  a  title  to  the  goods  therein;  its  protection  is  per- 
sonal to  the  ofl5cer,  Myer  v.  Hearst,  supra.  Nor  can  a  writ  founded 
upon  a  void  affidavit  enable  the  officer  to  assert  title  to  the  goods  taken 
thereunder.  Aspell  v.  Hosbein,  98  Mich.  117,  57  N.  W.  27.  And  the 
officer,  to  maintain  his  title  to  the  goods  levied  upon,  must  show  not 
only  a  fair  writ,  but  a  valid  judgment  unsatisfied,  Muller  v.  Plue,  45 
Neb.  702,  64  N.  W.  232. 

And  a  judgment  entered  without  authority  of  law,  or  an  execution 
issued  thereon,  will  not  protect  the  offieer.  The  county  judge  gave 
judgment  for  costs,  on  appeal  the  District  Court  remanded  the  cause 
for  final  judgment.  Held,  that  as  the  county  judge  was  acting  merely 
as  a  justice,  and  the  time  within  which  a  judgment  could  be  rendered 
under  the  statute  had  expired,  the  District  Court  was  without  juris- 
diction to  so  remand  the  cause,  and  this  second  judgment  and  all 
proceedings  thereunder,  were  void,  Best  v.  Stewart,  48  Neb.  859,  67  N. 
W.  881.  Where  the  officer  knoics  of  the  illegality  of  the  process. — A 
sheriff  has  no  right  to  be  wiser  than  his  process;  what  he  is  com- 
manded to  do  he  is  to  do,  and  will  be  protected  in  doing,  Richards  v. 
Nye,  5  Ore.  382.  A  tax  collector  is  bound  to  obey  a  warrant  issued  by 
competent  authority  and  regular  on  its  face;  he  is  under  no  duty,  and 
has  no  power,  to  inquire  into  the  precedent  steps,  Cunningham  v. 
Mitchell,  67  Pa.  St.  78.  One  acting  as  a  member  of  a  village  board 
at  a  time  when  a  tax  was  levied,  and  who  afterwards  becomes  the 
marshal  and  receives  a  warrant  for  the  collection  of  the  tax,  is  not,  in 
his  new  capacity,  chargeable  with  notice  of  illegality  in  the  levy,  Bird  v. 
Perkins,  33  Mich.  29.  Cut  the  officer  is  not  protected  if  the  warrant 
Issued  from  one  having  no  authority,  Cunningham  v.  Mitchell,  supra. 
In  Leachman  v.  Dougherty,  81  Ills.  324,  it  was  held  that  a  tax  warrant 
issued  by  competent  authority  and  fair  upon  its  face  was  no  protection 
to  an  officer  who  had  notice  that  the  tax  was  not  levied,  and  who  had 
contributed  to  the  irregularity.  In  Taylor  v.  Alexander,  6  Ohio.  144, 
an  officer  sued  in  trespass  for  an  assault,  justified  under  a  warrant 
which  charged  the  plaintiff  with  larceny.  The  plaintiff  offered  to 
prove  that  defendants  knew  he  was  innocent  and  procured  the  arrest 
to  bring  him  within  the  reach  of  civil  process;  the  evidence  was  re- 
jected and  the  Supreme  Court  held  properly.  The  court  say,  that  "  it 
does  not  comport  with  correct  policy  to  permit  an  executive  officer  to 
examine  into  the  legality  of  the  proceedings  of  the  court  whose  process 
he  has  to  execute,  or  to  confer  upon  such  an  one  authority  to  proceed 
or  forbear  as  he  may  judge  best;  "  and  after  adverting  to  the  apparent 
validity  and  regularity  of  the  warrant  the  court  held  "  the  officer  was 
legally  bound  to  execute  it." 

Justification  under  Writ  of  Replevin. — A  writ  of  replevin  is  a  com- 
plete protection  to  the  officer  who  obeys  its  command,  irrespective  of 


GOODS    IN    THE    CUSTODY    OF    THE    LAW.  283 

replevied  from  hiin  his  plea  must  aver  that  the  goods  were  the 
property  of  the  defendant  in  the  process  under  which  they  were 

•who  is  the  owner  of  the  goods,  Boyden  v.  Frank,  20  Ills.  Ap.  169; 
Weiner  v.  Van  Rensalaer,  43  N.  J.  L.  547.  The  oflScer  to  whom  a  writ 
of  replevin  is  delivered  is  bound  to  execute  it,  notwithstanding  the 
adverse  claims  of  third  parties,  and  is  not  liable  to  the  action  of  such 
parties,  Curry  v.  Johnson,  13  R.  I.  121;  and  though  the  officer  knows 
that  the  goods  are  not  repleviahle,  Watson  v.  Watson.  9  Conn.  141;  and 
though  the  officer  takes  the  goods  described  therein,  from  the  possession 
of  a  stranger  to  the  writ,  Boyden  v.  Frank,  supra.  Contra,  Sexton  i\ 
McDowd,  38  Mich.  148.  An  ofiBcer  who  proceeds  regularly  in  executing 
a  writ  of  replevin,  and  who  takes  the  very  goods  described  therein, 
is  protected  by  his  process,  and  neither  he  nor  his  sureties  are 
liable  in  damages  to  a  third  person,  the  owner  of  the  goods,  Phillips  v. 
Spotts.  14  Neb.  139,  15  N.  W.  332;  see  contra.  The  State  v.  Jennings, 
4  0.  St.  418.  But  he  is  liable  if  he  takes  goods  not  named  in  the  writ, 
Klinkowstein  v.  Greenberg,  15  Misc.  479,  37  N.  Y.  Sup.  206. 

But  the  writ  is  no  protection  to  the  plaintiff  therein,  who  causes  it 
to  be  issued  and  executed  unlawfully,  Watson  v.  Watson,  supra. 

Abuse  of  Process. — If  the  officer  after  seizing  the  goods  under  attach- 
ment delivers  them  to  the  attaching  creditor,  he  becomes  a  trespasser 
ab  initio;  the  lien  of  the  attachment  is  gone,  and  he  can  no  longer 
assail  as  fraudulent  the  title  of  one  replevying  the  goods  and  claiming 
under  a  sale  from  the  attachment  defendant,  Griswold  v.  Sundback, 
4  S.  D.  441,  57  N.  W.  339.  So  where  the  officer  delivers  the  replevied 
goods  to  the  plaintiff,  before  the  execution  of  the  bond  required  by  the 
statute,  McKinstry  v.  Collins,  76  Vt.  221,  56  Atl.  985.  A  tax  collector 
does  not  become  a  trespasser  ab  initio  by  keeping  property  levied  upon 
a  little  longer  than  absolutely  necessary  to  make  the  advertisement  and 
sale.  Bird  v.  Perkins,  33  Mich.  29. 

Of  the  Plea. — The  officer  may  justify  under  a  general  denial.  Best  r. 
Stewart,  48  Neb.  SCO.  07  N.  W.  881;  Pico  v.  Pico,  56  Calif.  453;  and  if  he 
pleads  both  the  general  denial  and  a  special  plea  in  justification,  he 
will  not  be  restricted  to  the  matter  set  up  in  the  special  plea,  Horkey 
V.  Kendall,  53  Neb.  522,  73  N.  W.  953.  Where  the  defendant  justifies 
a  levy  upon  the  goods  as  the  property  of  a  stranger  to  the  action,  he 
must  aver  that  the  goods  were  the  i)roperty  of  such  stranger.  Olds  v. 
Andrews,  66  Ind.  147.  If  the  officer  plead  merely  an  execution  and 
property  In  the  defendant  therein,  he  may  show  fraud  in  the  sale 
under  which  an  intervenor  Is  claiming,  Burrows  v.  Wathloll,  52  la.  195, 
3  N.  W.  37.  Where  an  an.swer  avers  that  drfendant  Is  a  constal>le,  tliat 
an  attachment  was  lawfully  issued  to  him  against  W.  shows  coniijliance 
with  the  requirements  of  the  statutes,  that  defendant  found  the 
goods  In  posHesslon  of  W  and  levied  the  attachment  thereon.  JudgmcMit 
duly  given  and  made  In  that  action,  for  tlie  plaintifT  and  agalnKt  the 
doff-ndant  therein,  and  thfrt-upon  an  cxfcutlon  IsHucd  upon  that  Judg- 
ment, and  delivered  to  defendant,  and  (hat  thereunder  he  levied  upon 


284  THE    LAW    OF    REPLEVIN. 

seized.'"  When  the  oflfieer  wishes  to  contest  the  title  of  the  plain- 
tiff as  fraudulent  us  to  creditors  whose  process  he  holds,  the  fraud 

'*="  Smith  V.  Winston,  10  Mo.  301;  Gentry  v.  Bargis,  6  Blackf.  262; 
Adams  v.  Hubbard,  30  Mich.  104;   Buck  v.  Colbath,  3  Wall.  342,  334. 

the  same  goods,  a  complete  justification  is  exhibited,  Whetmore  v.  Rupe, 
65  Calif.  237,  3  Pac.  851.  An  officer,  justifying  under  an  execution  is 
not  bound  to  anticipate  the  case  of  the  plaintiff  or  to  plead  or  know 
anything  as  to  the  origin  or  nature  of  the  plaintiff's  title,  Stephens  v. 
Hallstead,  58  Calif.  193.  A  plea  in  justification  alleging  that  the  goods 
were  taken  under  attachment  against  the  husband  of  plaintiff,  that 
the  same  were  purchased  by  the  husband  with  his  own  means,  and 
title  taken  in  the  name  of  plaintiff  for  the  purpose  of  delaying,  hinder- 
ing and  defrauding  creditors,  and  that  the  plaintiff  took  the  legal  title 
in  trust  for  the  husband,  fails  to  state  a  defense, — apparently  for  fail- 
ing to  aver  title  in  the  husband  or  that  the  goods  were  subject  to 
attachment,  Marrinan  v.  Knight,  7  Okla.  419,  54  Pac.  656. 

Of  the  Evidence. — The  officer  must  prove  a  judgment  unsatisfied, 
Wyatt  V.  Freeman,  4  Colo.  14;  Gidday  v.  Witherspoon,  35  Mich.  369; 
and  existing  when  the  process  issued,  Balm  v.  Nunn,  63  la.  641,  19 
N.  W.  810.  A  subsequent  judgment  nunc  pro  tunc  will  not  suffice, 
Shue  V.  Ingle,  87  Ills.  Ap.  522.  An  officer,  seeking  to  impeach  the 
plaintiff's  title  as  fraudulent,  as  to  creditors,  must  show  a  valid  judg- 
ment, or,  if  he  justifies  under  an  attachment,  a  subsisting  debt, 
Schemerhorn  v.  Mitchell,  15  Ills.  Ap.  418;  Newton  v.  Brown,  2  Utah. 
126;  Densmore  Co.  v.  Shong,  98  Wis.  380,  74  N.  W.  114.  The  debt  may 
be  established  by  showing  a  valid  judgment,  Densmore  Co.  v.  Shong, 
supra.  But  the  proof  of  the  judgment  is  not  required  where  the  officer 
merely  defends  against  personal  liability,  Kahn  v.  Hayes,  22  Ind.  Ap. 
182,  53  N.  E.  430.  He  must  show  a  completed  levy,  and  if  he  would 
claim  the  goods  must  prove  a  judgment;  though  the  execution  merely, 
will  protect  him  against  personal  liability,  Gidday  v.  Witherspoon, 
supra,  where  validity  of  the  execution  is  admitted,  a  valid  judgment 
may  be  presumed.  Brock  v.  Barr,  70  la.  399,  30  N.  W.  652.  Justifying 
and  asserting  title  to  the  goods  under  an  attachment,  and  assailing  the 
plaintiff's  title  as  fraudulent  as  against  creditors,  he  must  aver  and 
prove  a  valid  and  subsisting  claim  of  the  plaintiff  in  the  attachment 
against  the  attachment  defendant,  and  a  regular  attachment,  Jones  v. 
McQueen,  13  Utah.  178,  45  Pac.  202.  In  Hall  v.  Johnson,  21  Colo.  414,  42 
Pac.  660,  it  was  held  that  the  mortgagee  in  a  mortgage  void  as  to  cred- 
itors, cannot  maintain  replevin  against  an  officer,  who  seizes  them  under 
attachment  against  the  mortgagor;  and  that  the  sheriff  need  not  show 
the  indebtedness  which  is  asserted  in  the  attachment  suit.  But  this 
seems  not  to  be  the  law.  The  officer  in  such  case  assails  the  mortgage 
as  the  representative  of  the  creditor.  In  no  other  capacity  is  he  entitled 
to  call  it  in  question.  Unless  there  be  an  indebtedness  to  one  whom  he 
represents,  there  is  no  creditor.     In  Montana,  an  officer  who  justifies 


GOODS    IN    THE    CUSTODY    OF    THE    LAW.  285 

should  be  speciully  pleaded ;  otherwise  he  may  not  be  permitted 
to  show  it.""  So  when  the  claim  of  the  plaintiff  is  wholly,  or  in 
part,  void  for  usurj'' — when  the  statutes  allow  the  defense  to  be 
made  by  parties  or  privies — the  usury  maybe  pleaded.'"  Where 
propert}'  seized  on  execution  is  replevied  from  the  officer,  and  he 
wishes  an  order  for  return,  he  nuist  not  only  plead  the  execution 
and  a  judgment  but  a  valid  execution  and  judgment  must  also  be 

""Frisbee  r.  Langworthy,  11  Wis.  375. 
'"Dix  V.  Van  Wyck,  2  Hill.  522. 

under  an  attachment,  must  show  that  the  undertaking  required  by  the 
statute,  as  preliminary  to  the  writ,  was  given.  Wise  v.  Jefferis,  2  C.  C. 

A.  432,  51  Fed.  641;  but  see  contra.  Matthews  v.  Densmore,  109  U.  S. 
216,  27  L.  Ed.  912.  He  must  show  that  the  writ  issued  regularly, 
Williams  v.  Eikenbury,  22  Neb.  210,  34  N.  W.  373.  But  this  rule  is 
limited  to  substantial  matters;  the  fact  that  the  affidavit  was  sworn 
before  plaintiff's  attorney  is  not  of  this  character,  Horkey  v.  Kendall, 
53  Neb.  522,  73  N.  W.  953.  And  he  must  show  that  he  proceeded 
regularly  under  his  process,  Ferguson  v.  Day,  6  Ind.  Ap.  138,  33  N.  E. 
213;  and  he  must  prove  that  he  is  an  officer  de  jure,  Outhouse  v.  Allen, 
72  His.  529; — but  the  officer  was  not  in  this  case  attacking  a  sale  as 
fraudulent;  his  own  testimony  is  competent,  Larsen  v.  Ditto,  90  Ills. 
Ap.  384,  Vaughn  v.  Owens,  21  Ills.  Ap.  249.  A  constable  who  produces 
a  certificate  of  his  election  granted  pursuant  to  statute,  with  proof 
of  his  acting  as  constable,  sufficiently  establishes  his  official  character, 
Schemerhorn  v.  Mitchell,  15  Ills.  Ap.  418. 

And  he  must  show  his  process,  Goodwin  v.  Sutheimer,  8  Kans.  Ap. 
212,  55  Pac.  486;  Van  Baalen  v.  Dean,  27  Mich.  104;  Ditto  v.  Pease,  82 
Ills.  Ap.  192;  if  the  process  be  lost  he  must  show  its  contents  by  second- 
ary evidence,  Barkley  v.  Leiter,  49  Neb.  123,  68  N.  W.  381.  And 
justifying  under  a  writ  against  A  the  seizure  of  goods  in  possession  of 

B,  he  must  show  title  in  A,  superior  to  that  of  B,  Stockwell  v.  Robin- 
son, 9  Houst.  313.  32  Atl.  528.  Justifying  under  a  writ  of  attachment 
in  due  form  of  law  and  from  a  court  of  competent  jurisdiction,  where 
the  goods  were  seized  in  possession  of  defendant  of  that  writ,  the  plain- 
tiff bf'lng  a  stranger,  the  writ  itself  is  a  justification,  Munns  v.  Love- 
land,  15  I'tah.  250,  49  Pac.  743.  A  meat  inspector  cannot  justify  seizing 
the  meats  of  a  butcher  without  proving  inspection  and  condemnation 
thereof;  the  mere  fact  that  the  Inspector  went  to  the  market,  selected 
the  carcasses,  marked  them  and  took  them  away.  Is  not  a  justlflcatlon, 
Kamman  v.  Lane,  55  Mich.  426.  21  N.  W.  872.  The  reversal  on  error 
of  the  judgment  under  which  an  offlt'cr  justifies,  is  no  bar  to  Ills  de- 
fense, if  the  execution  IsKued  lawfully  and  tin'  judj^nn-nt  had  not  been 
BuperHcded  when  he  made  his  levy.  Acting  lawfully,  he  Is  not  to  bo 
turnf'd  Into  a  trfspasHer  by  subsequent  proceedings  of  the  character  In 
queKtioM.  Shre(  k  i     Gilbert,  52  Neb    SK!,  7.T  N.  W.  276. 


286  THE    LAW    OF    REPLEVIN. 

given  in  evidence  to  support  the  plea.'"  And  the  plea  and  the 
evidence  should  show  tliat  the  writ  was  in  full  force  and  not  satis- 
fied, and  tliat  the  property  Avas  taken  in  obedience  to  the  writ.''" 
§303.  The  same.  When  the  vendee  of  goods  replevied  them 
from  a  sheriff  who  seized  them  on  mesne  process  against  the  ven- 
dor before  the  sheriff  could  contest  the  sale  on  the  ground  that  it 
was  fraudulent,  he  was  compelled  to  make  out  a,  j^rima  facie  case, 
at  least,  of  indebtedness.  His  right  depended  on  the  existence  of 
a  debt  due  to  the  plaintiff  in  the  process. ''*  The  officer,  in  such 
case,  is  representing  the  creditors,  and  they  have  no  right  to  con- 
test the  sale  unless  they  show  a  debt,  or  some  obligation  which 
the  vendee  is  under  to  them.  A  sale  by  a  sheriff  can  transfer 
no  better  title  than  the  defendant  had  in  the  process  upon  which 
the  sale  was  made."^ 

''^  Glascock  V.  Nave,  15  Harrison,  (Ind.)  458;  Beach  v.  Botsford,  1 
Doug.  (Mich.)  206;  Clay  v.  Caperton,  1  T.  B.  Mon.  (Ky.)  10;  Sande- 
ford  V.  Hess,  1  Head,  (Tenn.)  679. 

'^  Dayton  v.  Fry,  29  111.  526. 

'"Sanford  Manf.  Co.  v.  Wiggin,  14  N.  H.  441;  Damon  v.  Bryant,  2 
Pick.  413. 

'"Goodrich  v.  Fritz,  4  Ark.  525;  Shearick  v.  Huber,  6  Binns.  (Pa.)  4; 
McDonald  v.  Prescott,  2  Nev.  109;  O'Conner  v.  Union  Line,  etc.,  31  111. 
230;  Hazzard  v.  Benton,  4  Har.  (Del.)  62. 


TAKING  BY  THEFT,  FORCE  OR  FRAUD. 


287 


CHAPTER  XII. 


TAKING  BY  THEFT,  FORCE  OR  FRAUD. 


Section. 

Taking  by  theft,  trespass  or 
fraud 304 

Thief  acquires  no  title  to  the 
stolen  goods    ....  305 

Sale  in  market  overt  passed  title  306 

Markets  overt  unknown  in  this 
country     .....  307 

Replevin  of  stolen  goods  does 
not  depend  on  the  conviction 
ofthetliief      .        .        .        .308 

A  trespasser  acquires  no  title, 
and  can  convey  none  by  any 
sale 309 

Replevin  lies  for  goods  ob- 
tained by  fraud,  even  from 
one  who  innocently  purcha- 
ses      310 

Innocent  purcliaser  from  a  thief 
may  elect  to  afiirm  the  con- 
tract as  against  the  thief        .  311 

Replevin  by  li»e  owner  of  goods 
sold  by  a  bailee  without  au- 
thority       312 

The  same.  Rights  and  author- 
ity of  n,  bailee        .  .313 

The  same.  Illustrations  <jf  the 
rule  .         .        .         .  .  314 

R«*plevin  lies  against  a  carrier 
for  g(x>ds  wrongfully  taken 
and  rommittf'd  to  his  care, 
and  such  carrier  has  no  lien 
on  the  goods  for  freigiit  .        .  315 

Replevin  lies  where  a  bailee 
ph-ilgcH  gixxlH  without  au- 
thority       310 


Section. 

The  rule  when  an  agent  or 
bailee  with  authority  sells  at 
a  less  price  than  his  instruc- 
tions warrant  .... 

Fraudulent  purchaser  takes  a 
title  voidable  at  the  election 
of  the  defrauded  vendor 

Observations  on  tlie  rule    . 

The  same     ..... 

Illustrations  of  the  rule     . 

Not  material  at  what  time 
the  fraudulent  representa- 
tions were  made 

Goods  paid  for  with  a  worth- 
less note,  counterfeit  money, 
or  stolen  goods 

Replevin  agaiii.stattaching  cred- 
itors in  such  cases  .         .         .  3C4 

Or  against  an  a.ssignee  for  the 
benefit  of  creditors 

Does  not  he  for  goods  sold  to 
enable  tlie  purchaser  to  vio- 
late the  law,  even  though 
there  may  have  been  fraud  in 
the  punliase    .... 

For  goods  sold  to  an  infant, 
when  hcj  avoids  j);iyment 

For  goods  obtaine<l  by  duress    . 

Tlic  general  rule  stated 

To  avoid  a  sale,  fraudulent  inten- 
tion of  jmrrhaxer  must  exi.st  330 

Diligrnce  nujnired  of  one  who 
wouM  rescind  a  sale  for  fnuid. 
return  or  t4'nd<«r  of  (he  consid- 
•  •ration      .....   331 


317 


318 
31!) 
320 
321 


322 


323 


325 


326 

327 
328 
329 


THE    LAW    OF    REPLEVIN. 


Section. 

Wluit  amounts  to  a  return  of 
property 333 

Does  not  lie  against   an    inno-. 
cent  purchaser  from  a  fraud- 
ulent purchaser       .        .         .  333 

The  distinction  between  acquir- 
iup:  floods  b_v  theft  or  trespass, 
or  by  fraudulent  purchase       .  334 

The  same.  Observations  upon 
the  rule 335 

Tlie  same 336 

The  same 337 


Section. 

Rule  wliere  goods  fraudulently 
purchased  are  taken  in  pay- 
ment of  a  pre-existing  debt   . 

Sale  of  goods  upon  condition    . 

Non-payment  for  goods  sold  on 
credit  does  not  warrant  a  re- 
scission of  the  contract 

Rule  where  tlie  vendor  stipu- 
lates to  retain  title  or  posses- 
sion until  payment         .         .  341 

The  same.     Illustrations   .         .  342 

Waiver  of  conditions  of  sale      .  343 


338 
339 


340 


§  304.  Taking  by  theft,  trespass  or  fraud.  With  the 
growth  of  the  coninion  law,  individual  title  to  property  hecame 
gradually  strengthened,  until  the  rule  became  crystalized  in  sub- 
stantially the  form  in  which  it  exists  in  the  Constitution  of  these 
States.  "  Xo  man  shall  be  deprived  of  his  property,  unless  by  his 
own  consent  or  due  process  of  law."  In  tliis  respect,  the  protec- 
tion given  to  property  was  next  to  that  extended  to  life  and 
liberty. 

§  305.  Thief  acquires  no  title  to  the  stolen  goods.  A 
thief  acquires  no  title  to  the  goods  he  steals  and  can  convoy  none, 
by  any  sale  and  delivery  he  may  make.  The  owner  of  such  stolen 
goods  may  recover  them  from  whosoever  hands  he  finds  them  in.^ 

§  306.  Sale  in  market  overt.  An  exception  was  made  by 
the  common  law,  in  cases  where  goods  which  had  been  stolen, 
were  sold  in  market  overt.     Such  a  sale  passed  absolute  title  to 

'2  Bla.  Com.  449;  Beazley  v.  Mitchell,  9  Ala.  780;  Saltus  v.  Everett, 
20  Wend.  275;  Sharp  v.  Parks,  48  111.  513;  Parham  v.  Riley.  4  Cold. 
(Tenn.)  9;  Hoffman  v.  Carow,  20  Wend.  20;  S.  C.  22  Wend.  285; 
Courtis  V.  Cane,  32  Vt.  232;  Lance  v.  Cowan,  1  Dana,  (Ky.)  195; 
Arendale  v.  Morgan,  5  Sneed,  (Tenn.)  703;  .Johnson  v.  Peck,  1  Wood 
&  M.  C.  C.  334;  White  v.  Spettigue,  1  Carr.  &  Ker.  073;  Florence  Sew. 
Mach.  V.  Warford,  1  Sweeny,  (N.  Y.)  433;  [Parham  v.  Riley,  4  Cold. 
5.  Where  one  assumes  forcible  possession  of  land  and  excludes  a  prior 
possessor,  he  acquires  no  title  to  the  product,  Laurendeau  v.  Fugelli, 
1  Wash.  559,  21  Pac.  29.  One  in  possession  of  lands  of  the  state  un- 
lawfully quarries  stone  therein;  defendants  enter,  and  without  right, 
carry  away  the  stone,  replevin  lies,  Reynolds  v.  Horton,  2  Wash.  185, 
26  Pac.  221.  Plaintiff  in  violation  of  an  injunction  against  another, 
acting  in  concert  with  him,  assumes  forcible  possession  of  defendant's, 
lands  and  plants  a  crop,  the  crop  belongs  to  the  defendant.  Hanlon  v, 
Goodyear,  103  Mo.  Ap.  416,  77  S.  W.  481.] 


TAKING    BY    THEFT,    FORCE    OR    FRAUD.  289 

the  purchaser.  Bat  the  ancient  law  prohil)ited  the  sale  of  any- 
thing above  the  value  of  twenty  pence,  except  in  market  overt. 
Sales  in  such  markets  were  exceedingly  formal  and  open,  and 
were  required  to  be  preceded  by  proof  of  ownership  on  the  part 
of  the  vendor,  so  that  there  was  little  danger  of  stolen  goods 
being  offered  without  immediate  detection  of  the  thief.' 

§  307.  Markets  overt  unknown  in  this  country.  But 
markets  overt  are  unknown  to  the  law  of  this  country.^  Sales  of 
chattels  are  made  on  all  occasions  without  question,  the  purchaser 
and  seller  relying  on  the  confidence  each  has  in  the  other.  This 
confidence,  usually  well  placed,  is  sometimes  betrayed  by  persons 
who  obtiiin  goods  regardless  of  the  owner's  rights,  for  the  sole 
purpose  of  making  way  with  them.  This  is  sometimes  done  by 
theft,  sometimes  by  trespass,  but  oftener  by  means  of  a  fraudulent 
purchase,  folloM'ed  by  sale  to  some  innocent  third  party.  Where 
the  goods  have  been  so  purchased,  the  question  is,  who  shall  bear 
the  loss,  the  innocent  and  defrauded  owner,  or  the  equally  inno- 
cent purchaser.  Where  the  goods  are  overtaken  in  the  hands  of 
the  wrongdoer,  his  fraud,  as  we  shall  see,  is  no  protection,  but 
where  they  are  found  in  the  hands  of  a  bona  fide  purchaser,  for 
value,  the  question  presents  more  difficulty. 

§  308.  Replevin  of  stolen  goods  does  not  depend  on  the 
conviction  of  the  thief.  As  before  stated,  goods  acquired  by 
tlif'ft  or  r()])bery  do  not  vest  in  the  taker.  The  owner  may  retake 
them  in  this  action,  whether  he  finds  them  in  the  hands  of  the  taker, 
or  of  an  innocent  purchaser  for  value  ;  and  the  conviction  of  the 
thief,  which  was  under  tlie  ancient  law  a  prerequisite,  is  not  now 
a  necessary  condition  to  a  successful  prosecution  of  the  suit.* 

»2  Bla.  Com.  449;  Hoffman  v.  Carow.  22  Wend.  285. 

•Griffith  V.  Fowler,  18  Vt.  390;  Dame  v.  Baldwin.  8  Mass.  518;  Par- 
ham  V.  Riley,  4  Cold.  (Tenn.)  9;  Vcntress  v.  Smith,  10  Peters,  161; 
Newkirk  v.  Dalton,  17  III.  415;  Lowry  v.  Hall.  2  W.  &  S.  (Pa.)  134. 

♦  With  reference  to  the  necessity  of  a  conviction  of  the  thief  before 
the  owner  can  reclaim  his  stolen  property,  sec  Foster  v.  Tucker.  3  Gr. 
(Me.)  458;  Newkirk  v.  Dalton,  17  111.  415;  Boston  &  W.  R.  R.  v.  Dana. 
1  Gray,  83;  Pettlng'ill  v.  Rldeout,  6  N.  H.  454;  Short  v.  Barker.  22 
Ind.  148;  Gordon  r.  Hostetter,  37  N.  Y.  99;  Bloody  v.  Keating.  4  Gr. 
(Me.)  164;  Wells  v.  Abraham.  L.  It.  7  Q.  B.  554;  Hoffman  v.  Carow,  22 
Wend.  285.  The  law  which  proliibilcd  a  private  action  against  the 
thief  was  for  the  purpose  of  coniiK-IIItig  the  owner  to  proH«»cute  him  to 
conviction;  the  right  to  recover  was  suspended.  Crosby  v.  Leng.  12 
East.  409.  But  the  prohibition  only  extended  to  suit  against  the  thief. 
19 


290  THE    LAW    OF    REPLEVIN. 

§  309.  A  trespasser  acquires  no  title,  and  can  convey 
none,  by  any  sale.  One  who  wrongfully  takes  goods  without 
the  owner's  consent,  aeciuircs  no  title  thereby,  and  can  convey 
none,  by  any  sale  or  transfer  he  may  make.  So  when  such  a 
taker  sells  the  goods,  even  to  an  innocent  purchaser  for  value,  the 
owner  may  pursue  his  property  and  retake  it  wherever  found. 
Where  a  willful  trespasser  cut  logs  on  another's  land,  and  sold 
them  to  one  who  sold  them  to  an  innocent  purchaser  for  value, 
the  owner  was  permitted  to  recover  their  value  with  interest, 
from  such  purchaser ;  or,  he  might  have  recovered  the  logs  had 
he  been  able  to  identify  them.*  ^yhere  the  defendant,  by  his  en- 
couragement, procured  a  messenger  to  leave  a  machine  with  him, 
knowing  that  it  w%as  intended  for  another,  and  afterward  made 
some  repairs  on  it,  the  taking  was  regarded  as  wrongful,  and  the 
owner  might  sustain  replevin  without  demand.® 

§  310.  Replevin  lies  for  goods  obtained  by  fraud,  even 
from  one  who  innocently  purchases.  Where  a  party  pro- 
cured possession  of  leather  l)y  personating  another,  who  was  an 
agent  of  the  owner,  and  shipped  it  to  Chicago,  and  sold  it  in  open 
market,  the  real  owner  was  entitled  to  sustain  trover  against  the 
l)urchaser  for  value.  The  possession  was  not  delivered  to  the  ven- 
dor, but  was  obtained  under  circumstances  which  might  convict 
him  of  embezzlement.  Under  such  circumstances  no  title  passed* 
and  the  taker  could  confer  none  by  sale.  Possession  is  one  of  the 
indicia  of  ownership ;  hut  bare  possession  is  not  title,  and  when 
that  possession  is  obtained  l)y  force  or  fraud,  it  confers  no  right.'' 

§  oil.  Innocent  purchaser  from  a  thief  may  elect  to  affirm 
the  contract  as  against  a  thief.  While  the  sale  or  exchange 
of  stolen  goods  does  not  divest  the  owner  of  his  title,  yet,  as  be- 
tween the  thief  and  his  vendee,  the  innocent  party  is  the  only 

therefore,  if  he  had  pawned  it  or  sold  it,  the  owner  might  bring  his 
action  against  the  purchaser  or  the  pawnbrol^er  without  waiting  for 
conviction  of  the  thief.  White  v.  Spettigue,  13  M.  &  W.  608.  This 
cannot  be  reconciled  with  Horwood  v.  Smith,  2  T.  R.  750;  Gimson  v. 
Woodfull,  2  Carr.  &  P.  41.  See  Stat.  24  and  25  Victoria,  Chap.  96, 
§  100;  7  and  8  Geo.  IV.,  Chap.  20,  §  57. 

=  Nesbitt  V.  St.  Paul  Lumber  Co.,  21  Minn.  491.  See  Riley  v.  Boston 
Water  Power  Co.,  11  Cush.  11;  Riford  v.  Montgomery,  7  Vt.  418; 
Courtis  V.  Cane,  32  Vt.  232;  Schulenberg  v.  Harriman,  21  Wall.  44; 
Williams  v.  Merle,  11  Wend.  80;  Gibbs  v.  Jones,  46  111.  320. 

•Purvis  V.  Moltz,  5  Robt.  (N.  Y.)  653. 

^Fawcett  v.  Osborn,  32  111.  411. 


TAKING    BY    THEFT.    FORCE    OR    FRAUD.  291 

one  to  avoid  the  sale.  Thus,  if  one  buy  or  exchange  for  a  stolen 
horse,  the  owner  can  recover  the  horse,  and  the  purchaser  may 
elect  to  rescind  the  contract  and  recover  the  consideration,  or  he 
may  aflBrm  the  contract  and  recover  the  value  of  the  horse  from 
the  thief  who  sold  him."  When  W.  traded  to  B.  a  horse  which 
he  had  stolen,  and  then  sold  to  C.  the  horse  he  received  from  B., 
B.  brought  replevin  against  C,  and  it  was  held  he  could  not  re- 
cover. This  was  not  a  case  where  the  owner  of  the  stolen  horse 
brought  suit,  but  the  plaintiff  was  seeking  to  recover  property 
which  he  had  voluntarily  sold  and  delivered,  and  something  that 
had  come  into  the  possession  of  a  bona  fide  purchaser  for  value.' 
Some  of  the  cases  assert  the  doctrine  that  one  who  receives  and 
sells  stolen  goods,  as  agent,  and  without  any  knowledge  pays  the 
money  to  the  thief,  is  liable  to  the  owner  for  the  value.'"  For 
example,  a  stable  keeper  who  receives  a  stolen  horse,  without  any 
knowledge  of  the  theft,  would  be  liable  in  replevin,  at  the  suit  of 
the  owner,  as  long  as  he  held  possession  ;  and  if  he  sells  the  horse, 
he  has  been  held  liable  for  the  proceeds,  and  the  fact  that  he  has 
paid  them  over  to  the  thief  has  been  said  to  be  no  defense." 

§  312.  Replevin  by  the  owner  of  goods  sold  by  a  bailee 
without  authority.  If  a  Ijailee,  without  authority,  sell  goods 
entrusted  to  his  care,  even  though  the  purchaser  pay  full  value^ 
and  have  no  knowledge  of  the  fraud,  still  the  owner  does  not  lose 
his  title."     The  general  rule  is,  that  an  agent  cannot  bind  his 

•Titcomb  v.  Wood,  38  Me.  561;  Lee  v.  Portwood,  41  Miss.  Ill; 
Smith  V.  Graves,  25  Ark.  458. 

•Brown  v.  Carapsall.  6  Har.  &  J.  (Md.)  491.  Consult  Doe  i'.  Martyr, 
4  Bos.  &  Pull.  332. 

"Hoffman  v.  Carow,  20  Wend.  20;   Same  r.  Same,  22  Wend.  285. 

"Spraights  v.  Hawley.  39  N.  Y.  441;  Stanley  v.  Gaylord,  1  Cush.  536; 
Dudley  v.  Hawley,  49  Barb.  397.  Compare  Rogers  v.  Hule.  2  Cal.  571; 
where  the  contrary  is  held. 

"2  Kent.  324;  Hilliard  on  Sales,  23;  1  Parsons  on  Contracts,  44; 
Dyer  v.  Pearson,  (3  B.  &  C.)  10  E.  C.  L.  38;  Williams  v.  Merle.  11 
Wend.  80;  IngerBoll  v.  Emraerson,  1  Carter,  (Ind.)  78;  Stanley  v. 
Gaylord,  1  Cush.  536;  Kltchell  i'.  v'anadar.  1  Blackf.  (Ind.)  356; 
Pribble  v.  Kent.  10  Ind.  325;  Johnson  r.  Wllley,  46  N.  H.  76;  Sanborn 
V.  Colman,  6  N.  H.  14;  Poole  t'.  AdklsHon.  1  Dana,  110;  Roland  r. 
Gundy,  5  Ohio.  202;  Lovi-Joy  i'.  JonoH,  30  N.  H.  169;  SarRont  t'.  Olio. 
8  N.  H.  325;  Galvin  r.  Bacon.  2  Fairfield,  (Me.)  28;  Nash  v.  Mosher. 
19  Wend.  431;  Howland  v.  Woodruff.  60  N.  Y.  74;  Neff  v.  Thompson. 
8    Barb.    213;    Sarjfant    r.    Blunt,    16   Johns.    74;    Wilson    v.    NaHon.    \ 


292  THE    LAW    OF    REPLEVIN. 

principal,  where  he  transcends  his  authority,  and  persons  who 
<leal  witli  an  agent  in  the  concerns  of  his  principal  ouglit  to  know 
tlie  extent  of  his  authority."  It  is  also  a  rule,  that  mere  posses- 
sion of  chattels  will  not  authorize  a  transfer  of  a  better  title  than 
the  possessor  has."  So,  where  a  mortgagor  of  chattels  in  Illinois 
took  them  to  Indiana  and  sold  them,  the  court  said,  that  upon  a 
proper  showing,  the  mortgagee  could  recover  them."  A  servant 
who  sells  his  master's  goods  witliout  authority  can  convey  no 
title.'*  So,  when  a  servant  quits  the  employ  of  his  master,  and 
takes  away  his  master's  goods,  it  is  a  conversion,  and  replevin, 
without  demand,  will  lie."  "Where  one  hires  a  horse,  for  the  pur- 
pose of  making  a  particular  journey,  and  goes  further,  he  is  liable, 
and  the  owner  might  sustain  replevin  or  trover ;  but  if,  on  his 
return,  lie  informs  the  owner  of  his  increased  journey,  and  he 
accepts  payment  under  those  circumstances,  it  is  a  waiver  of  the 
conversion.'* 

Bosw.  155;  Lecky  v.  M'Dermott,  8  S.  &  R.  (Pa.)  500.  Compare 
Drummond  v.  Hopper,  4  Har.   (Del.)    327. 

'=  Cases  last  cited.    Schemmelpennich  v.  Bayard,  1  Pet.  264. 

"Hotchkiss  V.  Hunt,  49  Me.  213;  Covill  v.  Hill,  4  Denlo.  327. 

"Blystone  v.  Burgett,  10  Ind.  28;  Martin  v.  Hill,  12  Barb.  631.  See 
Barker  v.  Stacy,  25  Miss.  477;  Offutt  v.  Flagg,  10  N.  H.  46;  Jones  v. 
Taylor,  30  Vt.  42. 

'"  Trudo  V.  Anderson,  10  Mich.  357. 

"Pillsbury  v.  Webb,  33  Barb.  214. 

"Rotch  V.  Hawes,  12  Pick.  136.  [If  the  horse  die,  even  without  his 
fault,  he  is  liable  for  the  value;  if  returned,  this  may  be  shown  in 
mitigation  of  damages,  Wheelock  v.  Wheelwright,  5  Mass.  104;  Fisher  v. 
Kyle,  27  Mich.  454;  and  he  is  liable  for  injuries  occasioned  by  the  fault 
of  the  horse.  Even  an  infant  may  be  charged  in  such  case.  Homer  v. 
Thwing,  3  Pick.  492.  He  is  liable  for  an  injury  to  the  horse,  though 
the  transaction  occurs  on  the  Lord's  day,  in  violation  of  the  statute, 
the  hiring  being  as  the  plaintiff  knows  for  mere  pleasure.  Hall  v. 
Corcoran,  107  Mass.  251.  But  one  who  loses  his  way  and  goes  by 
what  he  honestly  thinks  the  best  way  home,  not  intending  at  any  time 
to  convert  the  horse,  is  not  liable  in  trover,  Spooner  v.  Manchester, 
133  Mass.  270;  Lucas  v.  Trumbull,  15  Gray,  306.  The  unauthorized 
use  of  another's  chattel,  is  a  conversion,  Gove  v.  Watson,  61  N.  H.  136; 
— so  is  any  unlawful  interference  with  the  goods  of  another,  e.  fir., 
a  levy  by  an  officer  and  putting  keei)er  in  charge,  Rider  v.  Edgar,  54 
Calif*  127.  If  mortgagee  sell  the  mortgaged  goods  at  private  sale  it  is 
a  conversion,  even  though  it  be  agreed  that  the  sale  does  not  extinguish 
the  lien  of  the  mortgage.  The  court  declined  to  regard  the  sale  as  an 
assignment  of  the  mortgage,  Everett  v.  Buchanan,  2  Dak.  249,  8  N.  W. 


TAKING    BY    THEFT,    FORCE    OR    FRAUD.  293 

§313.  The  same.  Rights  and  authority  of  a  bailee.  The 
law  simply  requires  a  party,  in  dealing  with  an  agent  or  bailee? 
to  look  at  the  acts  of  the  principal.  Private  communications 
to  the  agent  would  not  generally  affect  the  rights  of  bona  fide 
third  parties  dealing  with  him  about  the  business  of  the  principal 
within  the  scope  of  his  agency.  If  one  send  his  horse  to  a  place 
where  horses  are  shod,  it  confers  no  authority  on  the  smith  to 
sell ;  but  if  he  send  his  horse  to  an  auction  stable,  it  will  not  be 
presumed  that  he  was  sent  there  for  safe-keeping,  but  for  the 
purpose  of  sale  generally  carried  on  there.''  If,  therefore,  in  the 
latter  case,  the  agent  sell  the  horse,  even  on  different  terms  than 
his  private  instructions  warmnt,  the  sale  would  be  good ;  ^  but 
if  the  ordinary  business  of  the  agent  was  for  purposes  other  than 
sale  of  horses,  the  sale  would  confer  no  title  except  such  as  the 
agent  was  specially  entrusted  with.  Purchasers  must  ascertain 
his  authority  at  their  peril.  A  purchase  from  an  agent  without 
authority,  even  though  the  purchaser  pay  full  value,  and  acts  in 
good  faith,  carries  no  title,  and  the  owner  may  sustain  replevin  " 

§  314.     The  same.     Illustration  of  the  rule.     If  a  man  send 

31.  There  may  be  a  conversion  without  deprivation  of  property,  as 
where  one  withholds  from  the  owner  a  certificate  of  shares  in  a  cor- 
poration, which  is  in  the  name  of  the  owner  so  that  the  wrong-doer 
does  not  nor  can  make  any  use  of  it,  Daggett  v.  Davis,  53  Mich.  35,  18 
N.  W.  548.  A  tortious  taking  or  an  assertion  of  title  in  hostility  to  the 
true  owner,  Haines  v.  Cochran,  26  W.  Va.  719; — a  denial  by  bailee  of 
the  right  of  those  who  succeed  to  the  title  of  the  original  bailor, 
Adams  v.  Mizell,  11  Ga.  lOG; —  assuming  possession  with  intent  to 
convert,  and  all  who  assist  or  co-operate,  are  liable,  Clark  v.  Whitaker, 
19  Conn.  319; — but  merely  borrowing  a  chattel  from  one  supposed  to 
be  the  owner,  and  for  a  temporary  purpose,  and  using  for  a  short  space 
the  chattel  of  another,  is  not  a  conversion,  Frome  v.  Dennis,  45  N.  J.  L. 
515.  Plaintiff  leases  sheep  to  defendant,  defendant  agreeing  to  market 
the  wool  crop  and  pay  over  one-half  the  gross  proceeds;  he  in  fact 
pledges  the  wool  and  retains  the  proceeds  to  his  own  use;  held,  con- 
version, Nichols  V.  Gage,  10  Ore.  82.] 

"Pickering  r.  Busk,  l.'i  East,  39;  Hicks  v.  Hankln,  4  Esp.  114; 
Stanley  v.  Gaylord,  1  Cush.  544. 

"Karjeant  v.  Blunt,  IC  Johns.  74;  Moore  v.  McKibbin,  33  Barb.  24C; 
McMorrlH  v.  Simpson,  21  Wond.  610. 

"East  India  Co.  v.  Hensley,  1  Esp.  112;  Johnson  v.  Wllley,  46  N.  H. 
75;  P'enn  v.  Harrl.Hon.  3  D.  &  E.  754;  Sanlwrn  v.  Colman.  6  N.  H.  14; 
Ix)veJoy  V.  JoncH.  10  FoHter,  165;  Sargoaut  v.  Gill.  8  N.  H.  325;  JefTerson 
V.  Chase,  1  Houst.  (Del.)  219.  Compare  Stanley  i'.  Gaylord,  1  Cush. 
544. 


104  THE    LAW    OF    REPLEVIN. 

liis  goods  to  an  agent  to  be  sold  on  liis  account,  and  the  latter  sell 
them  to  his  creditor  for  the  payment  of  his  own  debt,  the  title  of 
the  owner  is  not  thereby  divested,  and  replevin  will  lie  even 
against  a  subsequent  purchaser,  without  notice."  But  where  one 
obtain  goods  fraudulently,  and  bail  them  to  another,  the  bailee 
may  surrender  to  the  true  owner,  and  may  show  such  facts  as  a 
bar  to  any  suit  against  himself  by  the  bailor."     When  A.  con- 

"Galvin  v.  Bacon,  11  Me.  28;  Parsons  v.  Webb.  8  Gr.  (Me.)  38; 
Herron  v.  Hughes,  25  Cal.  556;  Loeschman  v.  Machin,  2  Stark.  311; 
Hyde  v.  Noble,  13  N.  H.  494. 

"Bates  V.  Stanton,  1  Duer.  (N.  Y.)  79.  Note  XVIH.  Bailee.— The 
following  cases  support  the  text:  Perry  v.  Williams,  39  Wis.  339; 
Gray's  Admr.  v.  Allen,  14  Ohio,  59.  The  bailee  cannot  refuse  to 
deliver  to  the  true  owner,  Rogers  v.  Weir,  34  N.  Y.  463;  Hart  v.  Boston 
Co.,  72  N.  H.  410,  56  Atl.  920;  but  he  may,  acting  in  good  faith,  post- 
pone a  response  to  the  demand  until  he  can  make  inquiry  as  to  the 
title,  Rogers  v.  W^eir,  supra.  Delivery  to  the  true  owner  is  a  complete 
defense  to  the  action  of  the  bailor  or  those  who  claim  under  him, 
Hentz  V.  The  Idaho,  93  U.  S.  575,  23  L.  Ed.  978.  But  when  a  bank 
executed  its  certificate  to  the  plaintiff,  attesting  that  T.  had  deposited 
with  it  certain  negotiable  bonds  as  security  to  the  plaintiff  for  a  loan, 
— held  that  from  that  time  the  bank's  possession  was  the  possession 
of  the  plaintiff,  and  the  receiver  of  the  bank  could  not  resist  his  de- 
mand on  the  ground  of  a  prior  pledge  of  the  same  bonds  by  T.  to  an- 
other. Gibson  v.  Lenhart,  111  Pa.  St.  624,  5  Atl.  52.  The  bailee,  who  with 
notice  of  the  rights  of  the  real  owner  aids  and  abets  the  bailor  in 
■wrongfully  converting  the  goods  is  liable  to  the  true  owner,  Mohr  v. 
Langan.  162  Mo.  474,  63  S.  W.  409;  but  this  does  not  apply  as  against 
a  mere  servant  acting  innocently;  or  a  broker  who  merely  sends  bought 
and  sold  notes,  between  the  parties;  to  a  carrier  who  transports  the 
goods  from  place  to  place;  to  a  packer  who  packs  them  for  shipment; 
to  a  watchmaker  who  repairs  a  watch  and  restores  it  to  one  who  loft 
it;  to  the  smith  who  shoes  the  horse  for  a  thief;  nor  to  the  broker  who 
merely  negotiates  the  contract  of  sale,  Mohr  v.  Langan,  supra.  Bailee 
who  delivers  stolen  goods  to  the  one  from  whom  he  received  them  is 
not  guilty  of  conversion,  Spooner  v.  Holmes,  102  Mass.  -503.  And  if 
bailee  deliver  the  goods  to  his  bailor,  before  notice  of  the  rights  of 
another,  he  is  not  liable  to  such  other,  Jarvis  v.  Rogers,  15  Mass.  389. 
And  one  who  accepts  stolen  coupons,  in  good  faith,  without  gross 
negligence  and  before  any  demand  or  notice  from  the  rightful  owner, 
sells  them  and  pays  the  amount  to  his  employer,  is  acquitted,  Spooner 
r.  Holmes,  supra.  Bailee  is  bound  to  return  the  goods  to  his  bailor 
on  demand,  and  he  cannot  set  up  that  another  is  tenant  in  common 
with  the  bailor  and  that  he  holds  under  such  other  as  his  trustee. 
Pullian  V.  Burlingame,  81  Mo.  Ill,  51  Am.  Rep.  229.  And  a  bailee 
against  whom  replevin  is  instituted  for  the  goods  bailed  to  him  must 


TAKING    BY    THEFT,    FORCE    OR    FRAUD.  295 

tracted  for  a  boiler  and  engine  of  certain  power,  and  paid  seven 
hundred  dollars  on  it,  the  maker  to  take  it  back  and  refund  the 
money  if  it  did  not  prove  sufficient ;  it  proved  insufficient,  and 
the  maker  refused  to  receive  it ;  but  some  months  afterwards 
asked  A.  to  let  him  t\ke  it,  promising  to  pay  for  the  use  of  it. 
Soon  after  obtaining  it,  he  mortgaged  it  to  one  veho  had  no  notice. 
A.  brought  replevin,  and  recovered.  Even  if  the  bailee  had  a 
right,  as  he  claimed,  to  sell  it,  he  had  no  right  to  mortgage.-* 
This  rule  is  based  upon  the  assumption  that  the  title  of  the 
original  owner  remains  unimpaired  by  any  fraudulent  act  of  the 

"Stevens  v.  Cunningham,  3  Allen,  (Mass.)  492.  See.  also.  Nash  v. 
Mosher,  19  Wend.  431;  Trudo  v.  Anderson.  10  Mich.  357;  Ballou  v. 
O'Brien.  20  Mich.  304;  Legal  News,  April  7,  1877,  237. 

notify  his  bailor,  in  order  that  he  may  have  opportunity  to  protect 
his  title,  Whitman  v.  Kleimann,  53  N.  Y.  Sup.  1088.  Wheat  deposited 
with  a  miller  to  be  stored  for  a  certain  time,  but  with  liberty  in  the 
party  making  the  deposit  to  sell  it  any  time,  and  agreement  by  the 
miller  that  the  wheat  should  be  retained  until  called  for;  the  wheat 
was  in  fact  ground  and  the  flour  sold;  it  was  held  to  be  a  bailment 
and  not  a  sale,  and  that  upon  the  expiration  of  the  period  of  deposit 
the  bailor  was  entitled  to  the  wheat  in  the  mill,  up  to  the  amount 
deposited  by  him.  by  a  title  superior  to  one  to  whom,  subsequent  to 
the  bailment,  the  miller  has  executed  a  mortgage,  Schindler  v.  West- 
over,  99  Ind.  395.  Property  wagered  upon  a  horse  race  may  be  re- 
covered if  delivered  up  by  the  stakeholder  without  a  decision  of  the 
judges  upon  the  race,  Jackson  v.  Nelson,  Tex.  Civ.  Ap.  39  S.  W.  315. 
As  against  a  stranger  bailee  is  entitled  to  the  goods,  and  as  against 
one  who  brings  a  wrongful  replevin  may  recover  the  full  value,  Hall  v. 
So.  Pac.  Co.,  Ariz.  57  Pac.  617.  And  though  the  plaintiff  claims  under 
a  bill  of  sale  from  the  bailee  himself  he  may  nevertheless  assert  the 
title  of  his  bailor,  and  establishing  it,  is  entitled  to  a  judgment  for 
return,  Delaney  r.  Canning,  52  Wis.  2C,C,,  8  N.  W.  897.  A  carrier  who 
delivers  goods  to  the  buyer  without  authority  of  the  seller  Is  guilty  of 
a  conversion,  Jellett  v.  St.  Paul  Co.,  30  Minn.  265.  15  N.  W.  237.  A 
carrier  garnisheed  In  respect  of  goods  In  his  hands  which  he  has 
delivered  to  the  sheriff  pursuant  to  the  garnishment.  Is  not  liable  for 
a  failure  to  deliver  to  the  consignee.  Stiles  v.  Davis,  1  Black.  101,  17 
L.  Ed.  33.  A  carrier  Is  liable  if  he  deliver  baggage  to  the  wrong  party; 
the  lo.sH  of  the  check  does  not  bar  the  plaintiff's  action;  no  presump- 
tion will  be  Indulged  that  the  trunk  was  delivered  to  some  persoa 
who  had  found  and  held  the  ch('(  k,  Cass  r.  New  York  Co.,  1  K.  D.  Smith, 
522;— and  a  demand  iu>on  the  baggage-master,  Is  Hufflclent,  /(/.  The 
death  of  the  bailee  tcrminateB  the  bailment,  no  trust  attends  the  goods 
In  the  hands  of  one  who  Hucceeds  to  his  poailloB,  Morris  r  Lciwe,  97 
Tenn.  243.  36  8.  W.  1098.) 


296  THE    LAW    OF    REPLEVIN. 

bailee;  tlmt  the  bailee,  having  no  title,  cannot  convej'  any  by  sale 
or  transfer,  and  that  a  purchaser  from  such  bailee  takes  no  title, 
but  simply  a  possession,  without  other  right.^^ 

§  olT).  Replevin  lies  against  a  carrier  for  goods  wrong- 
fully taken  and  committed  to  his  care.  Such  carrier  has 
no  lien  on  the  goods  for  freight.  A  common  carrier,  who  re- 
ceives goods  from  a  wrongful  taker,  without  knowledge  of  the 
wrong,  cannot  resist  the  action  by  the  true  owner.^*  Neither  can 
he  assert  a  lien  for  his  services  as  such  carrier."  Where  an  inn- 
keeper was  sued  in  replevin  for  a  horse,  and  the  defendant  claimed 
a  lien  for  his  keeping,  and  plaintitt'  contended  that  the  horse  had 
been  stolen,  Lord  Holt  said  the  innkeeper  is  not  bound  to  con- 
sider who  is  the  owner  of  tbe  horse,  but  whether  he  who  brings 
him  is  his  guest.'"  This  latter  ruling,  however,  was  disregarded 
in  the  cases  before  cited.  There  may  be  a  distinction  between  an 
innkeeper  who  feeds  a  horse,  which  is  necessary  to  save  the  ani- 
mal, and  is  for  the  owner's  benefit,  and  a  carrier  who  transports 
goods,  which  may  be  to  the  injury  of  the  owner.  But  the  eases 
are  tolerably  clear  that  a  carrier  cannot  set  up  a  lien  against  the 
true  owner  for  his  carriage  of  such  goods,  since  he  may  demand 
his  charges  in  advance,  if  he  be  so  minded.  The  action,  however, 
would  not  lie  without  demand.'^' 

§  310.  Replevin  lies  where  a  bailee  pledges  goods  with- 
out authority.  When  the  owner  of  pork  in  a  warehouse  en- 
trusted the  warehouse  receipts  to  a  party  to  repack  it,  and  the 
latter  pledged  the  receipts  as  collateral  for  a  loan  of  money, 
and  in  default  of  payment  the  lender  sold  the  pork,  the  real 
owner  was  permitted  to  sustain  replevin,  although  an  innocent 
party  purchased  for  value.'" 

"  Ingersoll  v.  Emmerson,  1  Carter,  (Ind.)   79. 

"Fitch  V.  Newberry,  1  Doug.  (Mich.)  1;  Robinson  v.  Baker,  5  Cush. 
137;  Van  Buskirk  v.  Purinton.  2  Hall,  (N.  Y.)  561;  Collmon  v.  Collins, 
2  Hall,   (N.  Y.)   569. 

"Kinsey  v.  Leggett,  71  N.  Y.  387. 

»Yorke  v.  Grenaugh.  2  Ld.  Raj'm.  866. 

"Fitch  V.  Newberry,  1  Doug.    (Mich.)    1. 

"Burton  v.  Curyea,  40  111.  324.  (Rumpf  v.  Barto,  10  Wash.  382,  38 
Pac.  1129.)  As  before  stated,  replevin  lies  for  personal  chattels  only. 
Where  one  hires  chattel  property  and  fixes  it  to  real  estate,  and  sells 
it  so  fixed  to  one  who  has  no  notice,  the  owner  cannot  recover  from 
the  innocent  purchaser,  because  it  has  become  part  of  the  realty. 
Pryatt  v.  The  Sullivan  Co.,  5  Hill,   (N.  Y.)    117. 


TAKING    BY    THEFT.    FORCE    OR    FRAUD.  297 

§  317.  The  rule  when  an  agent  or  bailee  with  authority 
sells  at  a  less  price  than  his  instructions  warrant.  When 
an  agent  or  bailee,  with  authoritj'^  to  sell,  does  sell  at  a  less  price 
than  his  instructions  warrant,  he  is  not  guilty  of  conversion  ;  nor 
would  a  purchase  from  him,  unless  fraudulent,  render  the  pur- 
chaser liable  to  the  owner  either  for  the  value  or  for  the  goods." 
In  such  case  the  sale  is  in  pursuance  of  the  authority  delegated, 
and  the  law  does  not  hold  a  purchavser  responsible  that  the  agent 
observes  the  details  of  his  instructions.  It  is  enough  that  the 
purchaser  assure  himself  that  the  agent  has  authority  to  sell  and 
receive  payment,  and  in  such  case,  if  the  agent  a])scond  with  the 
proceeds,  the  principal  by  whose  authority  he  acted  must  assume 
the  loss. 

§  318.  Fraudulent  purchaser  takes  a  title  voidable  at  the 
election  of  the  defrauded  vendor.  A  sale  and  delivery  of 
goods,  procured  through  the  fraudulent  representations  of  the 
buyer,  with  intent  to  cheat  the  seller,  may  be  avoided  by  the 
latter.  In  such  case,  as  between  the  vendor  and  purchaser,  a 
voidable  title  to  the  property  passes."  The  fraud  practiced  is 
regarded  as  sufficient  to  avoid  tlie  contract,  if  the  innocent  party 
so  elect.  The  fraudulent  purchaser,  however,  cannot  avoid  it  on 
the  ground  of  his  own  fraud.  The  real  owner  may  prefer  to 
treat  him  as  a  purchaser  and  recover  value,  or  he  may  elect  to 
rescind  the  sale  and  recover  his  goods  in  replevin."  The  rule 
may  be  regarded  as  settled  that  where  goods  are  obtained  from 
the   owner   by   fraudulent   purchase,   he   can    sustain    rei)levin 

"  Dufrense  v.  Hutchinson.  3  Taunt.  117;  Sarjeant  v.  Blunt,  16  John. 
74;  Laverty  v.  Snethan,  Cent.  Law  J.  April  1877.  330;  Scott  v.  Rogers, 
31    N.   Y.    076. 

"Ayres  v.  Hewitt,  19  Me.  281;  Hunter  v.  Hudson  River  Iron  Co..  20 
Barb.  494;  Nichols  v.  Michael.  23  N.  Y.  206;  Nichols  v.  Pinner,  18 
N.  Y.  295;  Sarjent  v.  Sturm,  23  Cal.  359. 

"Rowley  v.  Bigelow,  12  Pick.  307;  Lloyd  v.  Brewster,  4  Paige,  541; 
Gray  v.  St.  Johns,  35  111.  239;  Titcomb  v.  Wood,  38  Me.  503;  Hall  v. 
Naylor,  18  N.  Y.  588;  Cary  v.  Hotalling.  1  Iliil,  311;  Ash  v.  Putnam.  1 
Hill,  302;  Olmstead  v.  Hotalling.  1  Hill,  317;  Mattcawan  Co.  v.  Bentloy, 
13  Barb.  C41;  Hall  v.  Gilmore,  40  Me.  581;  St-uver  r.  Dinghy,  4  (Jr. 
(Me.)  307;  Gray  v.  St.  John,  35  HI.  239.  Consult  Bristol  t'.  Wllsmore. 
1  B.  A  C.  514;  Kllby  v.  Wilson.  1  R.  &  Moody,  187;  Van  Cleef  v. 
Fleet,  15  Johns.  149;  Hill  v.  Freeman,  3  Cush.  259;  Hussey  v.  Thornton, 
4  MaHB.  405;  Marston  v.  Baldwin,  17  Mass.  000;  Smith  v.  DennlH,  f> 
Pick.  262;  Bowcn  v.  Schuler,  41  111.  193;  Mackinhy  r.  MGrcgor.  3 
Whart.  (Pa.)  308. 


298  THE    LAW    OF    REPLEVIN. 

ng-ainst  the  fraudulent  purchaser  so  long  as  the  goods  are  in  his 
possession.'* 

"Acker  v.  Campbell,  23  Wend.  372;  Abbotts  v.  Barry,  (2  Brod.  & 
Bing.)  6  E.  C.  L.  370;  Browning  v.  Bancroft.  8  Met.  278;  C:k)ghin  v. 
Boring,  15  Cal.  217;  Weed  v.  Page,  7  Wis.  503;  Welker  v.  Wolveri 
kuehler,  49  Mo.  36;  Andrew  v.  Dieterich,  14  Wend.  32;  Malcom  v. 
I.overidge,  13  Barb.  372;  Allison  v.  Matthieu,  3  Johns.  235;  Keyser  v. 
Harbeck,  3  Duer.  373;  Williams  r.  Given,  C  Gratt.  268;  Jennings  v. 
Gage,  13  111.  610;  Titcomb  v.  Wood,  38  Me.  561;  Caldwell  v.  Bartlett, 
3  Duer.  341;  Stephenson  v.  Hart,  4  Bing.  476;  Bristol  v.  Wilsmore,  1 
B.  &  Cress.  514;  Manning  v.  Albee,  14  Allen,  8;  Noble  v.  Adams,  7 
Taunt.  59. 

Note  XIX.  Fraudulent  Purchaser. — If  an  insolvent  person  pur- 
chases goods  upon  credit,  concealing  his  insolvency,  vendor  may 
rescind,  and  replevy  the  goods,  unless  the  right  of  third  persons 
has  intervened,  Tennessee  Co.  v.  Sargent,  2  Ind.  Ap.  458,  28  N.  E. 
215.  Phoenix  Iron  Works  v.  McEvony,  47  Neb.  228,  66  N.  W.  290. 
So  where  goods  are  obtained  without  consideration  upon  false  sug- 
gestion that  creditors  are  about  to  attach,  Hays  v.  Windsor,  130  Calif. 
230,  62  Pac.  395;  and  where  goods  are  obtained  in  exchange  for  a 
promissory  note,  which,  as  the  buyer  knows,  the  seller  believes  to  be 
the  note  of  one  person,  whereas  it  is  in  fact  the  note  of  a  different 
person  of  the  same  name,  Parrish  v.  Thurston,  87  Ind.  437;  and  where 
a  promissory  note,  the  property  of  the  wife,  is  obtained  from  the 
husband  while  in  a  state  of  intoxication,  induced  by  defendant,  though 
the  note  was  expressed  to  be  payable  to  the  husband,  was  negotiable, 
and  was  not  yet  due,  More  v.  Finger,  128  Calif.  313,  60  Pac.  933.  And 
false  representation  may  be  by  words  or  acts,  or  mere  suppression  of 
facts,  Faulkner  v.  Klamp,  16  Neb.  174,  20  N.  W.  220;  e.  g.,  the  sale  of 
mortgaged  chattels  without  informing  the  buyer  of  the  encumbrance, 
entitles  the  buyer  to  rescind,  Merritt  v.  Robinson,  35  Ark.  483;  and 
procuring  a  release  of  the  mortgage  after  replevin  brought  does  not 
defeat  the  action.  Whether  an  innocent  misrepresentation  be  ground 
to  rescind  a  sale  of  chattels  has  never  been  authoritatively  adjudicated 
in  this  country.  Enright  v.  Felheimer,  25  Misc.  664,  56  N.  Y.  Sup. 
366.  In  this  case  it  was  said  that  the  intent  to  deceive  must  be  proven. 
False  representations  to  a  third  person,  intended  to  be  communicated, 
to  wit,  a  commercial  agency,  relied  upon  by  the  vendor,  is  ground  to 
rescind,  Farwell  v.  Boyce,  17  Mont.  83,  42  Pac.  98,  Soper  Co.  v.  Halstead 
Co.,  73  Conn.  547,  48  Atl.  425;  or  like  representation  of  a  corporation 
in  its  annual  report  of  condition  filed  in  a  public  office,  Steel  v. 
Webster,  188  Mass.  478,  74  N.  E.  686,  distinguishing  Hunnewell  v. 
Duxbury,  154  Mass.  286,  28  N.  E.  267,  13  L.  R.  A.  733.  The  purchase  of 
goods  by  an  insolvent  upon  credit  is  not  fraudulent,  even  although  he 
knows  of  his  insolvency  and  fails  to  declare  it,  unless  there  be  an  in- 
tent not  to  pay  the  price,  Pinckney  r.  Darling,  3  App.  Div.  553,  38 
N.  Y.  Sup.  411,  Stein  v.  Hill,  100  Mo.  Ap.  38,  71  S.  W.  1107,  Hacker  v. 


TAKING  BY  THEFT,  FORCE  OR  FRAUD.        299 

§  319.     Observations  on  the    rule.     An  exceedingly   plau- 
sible di.stinction   was   taken   in   a   New  York   Ci\se,  where  it  was 

Monroe.  56  Ills.  Ap.  420,  Bell  r.  Ellis,  33  Calif.  620,  Powell  v.  Bradlee. 
9  G.  &  J.  220,  Adler  &  Sons  Co.  v.  Tharp,  102  Wis.  70,  78  N.  W.  184; 
and  fraud  is  not  to  be  inferred  merely  from  the  fact  that  the  pur- 
chaser was  in  debt  at  the  time,  Feder  v.  Abrahams,  28  Mo.  Ap.  454;  or 
embarrassed  in  his  circumstances  and  not  able  to  pay  his  debts. 
Hacker  v.  Monroe,  supra.  Fisher  v.  Conant.  3  E.  D.  Sm.  199.  And  a 
merchant  is  not  insolvent  merely  because  he  has  not  on  hand  money 
to  pay  his  current  demands  as  they  mature.  Noble  v.  Worthy,  1  Ind. 
Ter.  458,  45  S.  W.  137.  But  if  an  insolvent  purchase  goods  with  in- 
tent not  to  pay  for  them,  and  concealing  his  insolvency,  he  commits 
a  fraud  which  entitles  the  seller  to  reclaim  the  goods  unless  the  rights 
of  innocent  third  parties  have  intervened,  Thompson  v.  Rose,  16  Conn. 
71,  Lee  v.  Simmons.  65  Wis.  523,  27  N.  W.  174;  Goodman  v.  Sampliner, 
23  Ind.  Ap.  72,  54  N.  E.  823;  Huthraacher  v.  Lowman.  60  Ills.  Ap.  448; 
England  r.  Forbes,  7  Houst.  301.  31  Atl.  895;  Bradley  Co.  v.  Fuller.  58 
Vt.  315,  2  Atl.  162.  And  such  fraudulent  intent  vitiates  the  purchase, 
though  no  misrepresentations  are  made  and  the  seller's  agent  has  in 
fact  heard  of  the  buyer's  embarrassment  immediately  prior  to  the  sale, 
Joslin  V.  Cowie,  60  Barb.  49.  Upon  sale  for  cash,  payment  of  the  price 
is  an  implied  condition  precedent;  and  if  the  purchaser  obtain  posses- 
sion without  payment  it  is  an  act  of  fraud  rendering  the  whole  trans- 
action a  nullity  and  entitling  the  seller  instantly  to  reclaim,  Matthews 
V.  Cowan.  59  Ills.  341;  as  if  the  buyer  pays  by  check  which  is  dis- 
honored. Id.  American  Co.  v.  Willsie,  79  Ills.  92;  or  obtains  possession 
by  pretending  an  intention  to  pay  cash,  and  then  offers  a  promissory 
note  of  the  seller.  The  court  said  that  the  law  would  not  recognize 
this  method  of  collecting  debts,  and  replevin  was  allowed,  Blake  v. 
Blackley,  109  N.  C.  257,  13  S.  E.  786.  Subsequent  participation  In  a 
fraud  by  which  goods  are  obtained,  is  as  effective  to  charge  the  one  so 
participating,  as  pre-concert  and  combination,  Lincoln  f.  Claflin,  6 
Wall.  132,  19  L.  Ed.  106.  As  if  one  knowing  of  a  contrived  fraud  aids 
in  its  execution  and  shares  the  proceeds,  Id.  And  all  who  assist  in 
disposing  of  stolen  goods  or  goods  obtained  by  a  trespass,  though  act- 
ing innocently,  are  liable.  Mohr  v.  Langan,  162  Mo.  474.  63  S.  W.  409. 
But  as  to  a  bona  fide  purchaser  from  the  fraudulent  vendee  the  title 
passes,  notwithstanding  the  fraud.  In  Perkins  i'.  Andorson.  65  la. 
398,  21  N.  W.  696,  Anderson,  who  was  notoriously  insolvent,  by  assum- 
ing the  name  of  Swede,  who  was  In  good  credit,  oljtained  goods  of  the 
plaintiff;  they  were  shipped  to  Swede's  address,  and  Anderson,  l)y 
representing  himself  to  the  carrier's  agent  as  Sw«m1«'.  ol)tained  the 
goods.  Held,  that  inasmuch  as  Anderson  was  tho  identicut  person  to 
whom  the  goods  were  sold  and  shipped,  plaint  iff  had  authorized  the 
carrier  to  deliver  th<'m  to  him;  that  tho  title  pasKed.  and  that  as 
against  a  bona  flde  iiurrhasor  the  plaintiff  could  not  recover.  And  In 
Moore  v.  Watson,  20  I(.  I.  4'jrj,  40  All.  345,  the  ])luiutifrs  sold  goods  to 


300  THE    LAW    OF    REPLEVIN. 

said  that  the  poods  havings  been  sold  and  delivered  to  the  defend- 
ant, the  pliiintirt'  had   voluntarily  parted   witli  his  actual  as  well 

the  defendants  on  the  credit  of  a  third  person,  the  agent  of  plaintiffs; 
the  purchasers  failed  to  pay;  the  agent  paid  a  portion  of  the  amount, 
which  was  accepted  in  full,  plaintiffs  agreeing  to  refund  if  the  de- 
fendant should  arrange  the  bill.  It  was  held  that  the  plaintiffs  having 
parted  with  the  goods  solely  on  the  credit  of  their  agent,  were  not 
defrauded  and  could  not  maintain  an  action  for  the  benefit  of  the 
agent.  A  representation  however  false,  if  not  relied  upon,  in  the  sale, 
does  not  entitle  the  vendor  to  rescind.  Schoeneman  v.  Chamberlin, 
37  App.  Div.  628.  55  N.  Y.  Sup.  845;  e.  g.,  a  fraudulent  representation 
of  which  the  vendor  had  no  knowledge  at  the  time  of  dealing,  Brackett 
V.  Griswold,  112  N.  Y.  454;  or  where  the  party  complaining  knew  or  was 
bound  in  law  to  know  the  fact,  in  spite  of  the  representation,  Burkle 
V.  Levy,  70  Calif.  250,  11  Pac.  643.  Plaintiff  has  the  burden  of  proving 
his  reliance  upon  the  false  statements,  Beacon  Falls  Co.  v.  Pratte, 
Mass.  76  N.  E.  285;  and  where  the  representations  were  made  many 
months  prior  to  the  sale,  the  jury  may  find  that  the  seller  was  not 
entitled  to  rely  upon  them,  Beacon  Falls  Co.  v.  Pratte,  supra.  And  one 
not  party  to  the  fraud,  nor  holding  under  the  one  defrauded,  cannot 
avail  himself  thereof;  e.  fir.,  a  mere  general  creditor  of  one  whose 
goods  have  been  procured  by  fraud,  Kingsley  v.  McGrew,  48  Neb.  812. 
67  N.  W.  787.  A  minor  may  during  his  minority,  avoid  a  sale  of  his 
goods  on  tender  of  what  he  has  received,  Towle  v.  Dresser,  73  Me.  252. 
One  who  obtains  goods  by  fraud  may  confer  a  title  on  a  bona  fide 
purchaser  at  any  time  while  the  goods  remain  in  his  possession.  Penin- 
sula Co.  V.  Ellis,  20  Ind.  Ap.  491,  151  N.  E.  105.  Plaintiff,  residing  in  Da- 
kota, sold  a  quantity  of  flour  to  one  representing  himself  to  be  doing 
a  business  at  a  particular  number  in  New  York,  when  in  fact  no  such 
person  ever  was  in  business  at  that  place  or  known  there;  the  defend- 
ant purchased  in  good  faith  of  an  unknown  person  who  gave  reference 
to  a  reputable  house.  Held,  the  plaintiff's  transaction  was  a  sale,  that 
the  goods  were  obtained  by  fraud  and  not  by  theft,  and  defendants  were 
entitled  to  retain  them.  McPherren  v.  Roman,  2  Ap.  Div.  264,  37 
N.  Y.  Sup.  706.  A  mortgage  to  an  attorney  to  secure  his  fee  for  de- 
fending an  assignment  for  creditors,  taken  without  knowledge  that 
the  stock  assigned  was  obtained  by  fraud,  is  preferred  to  the  claim 
of  the  vendor,  to  the  extent  of  the  value  of  the  services  rendered  previ- 
ous to  obtaining  notice  of  the  fraud.  Meyers  v.  Bloon,  20  Tex.  Civ.  Ap. 
554,  50  S.  W.  217.  But  if  the  assignee  has  on  hand  other  goods  sub- 
ject to  such  mortgage  those  must  be  first  disposed  of  before  resort 
to  the  goods  fraudulently  obtained,  Id.  And  one  who  comes  into 
possession  of  goods  through  a  purchase  from  a  former  purchaser  in 
fraud,  even  with  notice,  is  responsible  only  for  the  goods  which  he 
received  and  not  for  other  goods  bought  at  the  time,  which  never  came 
into  his  possession,  Cowen  v.  Bloomberg,  66  N.  .1.  L.  385,  49  Atl.  451. 
"Vendor  whose  goods  were  obtained  by  fraud,  must,  if  he  would  rescind. 


TAKING    BY    THEFT,    FORCE    OR    FRAUD.  301 

as  his  constructive  possession,  that  as  the  taker  had  acquired  pos- 
session by  deliver}'  from  the  owner,  trespass  would  not  lie,  and 

offer  to  do  so  at  the  earliest  possible  moment,  Poor  r.  Woodburn,  25 
Vt.  234;  and  must  return  what  he  has  received.  The  Matteawan  Co.  v. 
Bentley,  13  Barb.  641;  Fisher  v.  Conant,  3  E.  D.  Sm.  199;  Merrill  Co.  v. 
Nickells,  66  Mo.  Ap.  678;  Kellogg  v.  Turpie,  93  Ills.  265;  even  though 
worthless,  Merrill  Co.  v.  Nickells,  supra.  Contra,  Fitz  v.  Bynum,  55 
Calif.  459.  But  if  the  fraud  consisted  in  making  the  agent  of  the  plain- 
tiff drunk  and  obtaining  the  thing  in  that  manner,  the  owner  need  not 
refund  what  was  paid  to  the  agent.  More  v.  Finger,  128  Calif.  313,  60 
Pac.  933.  And  the  vendor  need  not  return  what  he  received  on  ac- 
count of  the  purchase  price  if  the  goods  have  been  damaged  to  an 
equal  amount.  Phoenix  Iron  Works  v.  McEvony,  47  Neb.  228,  66  N.  W. 
290.  And  where  an  exchange  of  animals  was  induced  by  fraudulent 
representations  as  to  age,  health  and  condition,  and  the  party  de- 
frauded was  prevented  from  making  prompt  return  of  the  animal 
which  he  had  received,  by  the  departure  of  the  other  party  to  another 
county,  and  before  his  return  was  known,  one  of  the  animals  received 
died  from  a  disease  with  which  he  was  infected  at  the  time  of  the  ex- 
change, the  return  was  held  excused.  Faulkner  v.  Klamp,  16  Neb. 
174,  20  N.  W.  220.  And  -the  defrauded  vendor  is  under  no  duty  to 
reimburse  to  the  fraudulent  vendee  the  expenses  which  the  latter  has 
incurred  in  getting  possession  of  the  goods,  Soper  Co.  v.  Halsted  Co., 
73  Conn.  547,  48  Atl.  425.  Plaintiff  sold  lumber  to  Russell;  the  sale  was 
induced  by  the  fraudulent  misrepresentations  of  Russell  as  to  his 
financial  condition;  one  of  the  terms  of  the  sale  was  that  Russell 
should  pay  the  freight  charges  and  deduct  the  same  from  the  price; 
Russell  sold  the  lumber  to  defendants,  and  defendants  paid  the  freight. 
It  was  held  that  plaintiff,  recovering  the  lumber  from  defendants,  was 
under  no  duty  to  repay  the  freight  charges.  The  reasoning  of  the 
court  Is  that  the  plaintiff  received  nothing  from  the  defendants,  and 
Russell  did  not  assign  to  defendants  the  contract  or  his  rights  under 
it,  but  the  lumber  merely,  Soper  Co.  v.  Halsted  Co.,  supra.  And  if  the 
vendee  maintains  the  validity  of  the  sale  and  insists  upon  retaining 
the  goods,  he  is  not  entitled  to  demand  a  surrender  of  a  promissory 
note  given  for  the  price.  Poor  v.  Woodburn,  25  Vt.  234.  And  it  is  held 
In  some  cases  that  a  surrender  of  a  promissory  note  given  for  the 
price  of  the  goods,  upon  the  trial,  is  sufflcient.  F'oor  v  Woodburn,  si/;jra; 
Coghill  V.  Boring,  15  Calif.  213;  Cowen  v.  Bloomberg.  60  N.  .1.  L.  385. 
49  Atl.  451.  If  the  notes  given  for  the  price  have  been  once  tendered 
to  the  buyer  and  refused,  the  fact  that  they  are  not  surrendered  at 
the  trial  of  an  action  on  a  replevin  bond  given  by  the  solicr.  In 
replevying  goods,  will  not  bar  the  sureties  of  their  right  to  have 
the  recovery  abated  by  tlie  amount  romulning  unpaid  thereon.  Seldner 
V.  Smith,  40  Md.  602.  If  the  vendor  dlsamrm  tin-  Half  as  Induced  by 
fraud  and  bring  replevin  for  the  goodn,  be  caiiiiof  nfterwards  R\ie  for 
the  price,  even  though  he  fulls  to  obtain  the  goodH  or  any  of  them  by 


302  THE    LAW    OF    REPLEVIN. 

that  as  replevin  was  strictly  concurrent  Avith  trespass,  replevin 

his  replevin.  Thompson  v.  Fuller.  62  Hun.  618,  16  IS.  Y.  Sup.  486. 
And  the  vendor  who  sues  for  the  price  with  knowledge  of  the  fraud 
thereby  affirms  the  sale  and  cannot  thereafter  rescind,  Hanchett  v. 
Riverdale  Co.,  15  Ills.  Ap.  57.  Any  affirmation  of  the  sale  has  the 
same  effect,  Soper  Co.  v.  Halsted  Co.,  supra.  But  an  action  for  the  price 
instituted  without  knowledge  of  the  fraud,  has  no  such  effect,  Pekin  Co. 
V.  Wilson,  66  Neb.  115,  92  N.  W.  176;  nor  has  an  attachment  suit  in 
which  the  goods  fraudulently  obtained  are  levied  upon,  and  which  is 
afterwards  dismissed,  Stanley  v.  Neale,  98  Mass.  344.  Horner  brought 
replevin  against  Hanchett,  sheriff,  to  recover  goods  fraudulently 
obtained  of  him  by  one  Laughlin,  only  part  of  the  goods  were  re- 
plevied; Horner  thereupon  dismissed  his  action  against  the  sheriff 
and  took  judgment  against  Laughlin  for  the  value  of  the  goods,  ob- 
taining judgment  for  the  whole  bill;  later  he  remitted  the  value  of  the 
goods  replevied.  Held,  that  he  had  affirmed  the  sale  and  was  left  with- 
out any  defense  to  m  action  on  the  replevin  bond.  Horner  v.  Boyden, 
27  Ills.  Ap.  573.  Where  fraud  is  alleged  a  wide  range  is  allowed  in  the 
examination  of  the  parties  connected  with  the  transaction,  Armagost  v. 
Rising,  54  Neb.  763.  75  N.  W.  534.  Evidence  of  other  frauds  of  like 
character  by  the  same  parties  near  the  same  time,  is  admissible, 
Bradley  Co.  v.  Fuller,  58  Vt.  315,  2  Atl.  162.  And  an  unusually  large 
purchase  attempted,  Katzenberger  v.  Leedom,  103  Tenn.  144,  52  S.  W. 
35.  Fraudulent  intent  may  be  inferred  from  circumstances,  M.  Cow- 
ing V.  Warner,  supra.  Insolvency  of  the  purchaser  tends  to  show 
an  intent  never  to  pay;  the  more  hopeless  the  insolvency,  the  stronger 
the  inference.  Stein  v.  Hill,  100  Mo.  Ap.  38,  71  S.  W.  1107.  The  value 
of  the  good  will  of  the  purchaser's  business  is  admissible  upon  the 
question  of  his  solvency.  Bell  v.  Ellis,  33  Calif.  620.  Declarations  of 
each  party  to  a  fraudulent  combination,  made  while  the  two  are 
engaged  in  carrying  it  out.  are  admissible  against  the  other,  though 
made  in  his  absence,  Bradley  Co.  v.  Fuller,  supra.  One  examined  to 
support  a  sale  alleged  to  have  been  fraudulent  may  be  cross-examined 
as  to  statements  made  by  him  to  third  persons,  tending  to  impeach 
it.  Armogast  v.  Rising,  supra;  Gowing  v.  Warner,  30  Misc.  593,  62 
N.  Y.  Sup.  797.  In  Hanchett  v.  Riverdale  Co..  15  Ills.  Ap.  57,  and 
Griswold  v.  Nichols,  117  Wis.  267.  94  N.  W.  33.  it  was  held  that  where 
goods  obtained  by  fraud  had  been  sold  for  a  valuable  consideration 
by  the  fraudulent  purchaser,  the  original  vendor  seeking  to  re- 
claim them  must  prove  that  the  last  purchaser  had  notice  of  the 
fraud;  but  the  true  rule  seems  to  cast  the  burden  of  proving  all  the 
elements  of  bona  fide  purchase  upon  the  one  claiming  in  that  character, 
Gowing  V.  Warner,  supra.  Grossman  v.  Walters,  58  Hun.  603,  11  N.  Y. 
Sup.  471.  And  it  seems  that  if  there  were  several  interested  in  the 
second  purchase  the  testimony  of  one  of  these,  that  he  had  no  knowl- 
edge of  the  original  fraud,  will  not  suffice.  Gowing  v.  Warner, 
supra.     In  Wise  v.   Grant,   140   N.   Y.   593,   35   N.    E.   1078,   goods  had 


TAKING    BY    THEFT,    FORCE    OR    FRAUD.  303 

•would  not  lie ;  '^  but  the  correctness  of  tliis  ruling  has  been 
doubted/"  the  error  lying  in  the  assumption  that  trespass  and  re- 
plevin are  strictly  concurrent.  And  upon  the  same  point  being 
presented  again,  the  court  held  squarely  that  trespass,  trover,  or 
replevin  in  the  cepit  or  detinet  would  be  proper  in  such  case." 
In  this  case  the  court  says  that  Jl'Carti/y.  Vkkenj  stands  alone, 
all  the  other  cases  on  this  subject  being  the  other  way.*® 

§  320.     The  same.     When  consent  of  the  vendor  is  urged  as 

"  M'Carty  v.  Vickery,  12  John.  348.  Compare  Nash  v.  Mosher,  19 
Wend.  431;  Marshall  v.  Davis,  1  Wend.  109.  These  cases  only  hold 
that  trespass  does  not  lie  against  one  who  lawfully  acquires  posses- 
sion, even  though  the  original  taker  was  a  wTong-doer. 

"Butler  V.  Collins,  12  Cal.  457;  Ash  r.  Putnam,  1  Hill,  307;  Barrett  v. 
Warren,  3  Hill,  348. 

"Gary  v.  Hotailing,  1  Hill,  312. 

"See  Olmsted  v.  Hotailing,  1  Hill,  317.  In  Trapnall  v.  Hattier,  1 
Eng.  (Ark.)  23,  where  a  very  similar  course  of  argument  with  M'Carty 
r.  Vickery  was  pursued,  but  the  question  presented  in  Arkansas  in- 
volved an  innocent  purchaser. 

been  obtained  by  fraud  of  the  purchaser  and  while  in  his  possession, 
were  attached  by  his  creditors;  the  vendor  brought  replevin;  the  statute 
provided  that  no  action  to  recover  a  chattel  can  be  had  "  when  it  was 
seized  by  virtue  of  an  execution  or  warrant  of  attachment  against  a  per- 
son other  than  the  plaintiff,  who  at  the  time  of  the  seizure  had  not  the 
right  to  reduce  it  into  his  possession."  The  vendor  of  the  goods  was 
ignorant  of  the  fraud  perpetrated  upon  him  until  after  the  attachment, 
and  had  neither  made  nor  attempted  a  rescission.  The  court  gave  judg- 
ment for  the  defendant  upon  the  exceedingly  refined  and  technical 
ground  that  because  there  had  been  no  rescission  prior  to  the  attachment 
levied,  the  plaintiff  had  then  no  right  to  reduce  the  property  into  posses- 
sion. This  was  followed  in  Borgfeldt  v.  Wood.  92  Hun.  2C0,  3fi  N.  Y.  Sup. 
612.  But  it  was  held  in  Depew  v.  Beakes,  16  Ap.  Div.  631,  44  N.  Y. 
Sup.  774.  that  trover  would  lie  against  the  sheriff;  and  in  Desbecker  v. 
McFarllne,  42  Ap.  Div.  4."^.  1G6  X.  Y.  025.  60  N.  E.  1110.  the  plaintiffs 
were  permitted  to  recover  from  the  sheriff  poods  of  which  they  had 
been  defrauded,  the  sheriff  holding  them  under  execution  against  the 
fraudulent  purchaser,  though  there  had  been  no  rescission  until  after 
the  levy;  and  this  seems  to  accord  with  the  atithoritios  elsewhere 
to  wit,  that  the  Institution  of  replevin  Is,  of  Itself,  a  rescission  of  a  sale 
Induced  by  fraud,  Soper  Co.  v.  Halstod  Co..  73  Conn.  .'■j17.  48  Atl.  42.''.: 
Bradley  Co.  v.  Fuller.  .18  Vt.  315,  2  Atl.  162.  It  seeniH  that  the  officer 
who  Is  made  dofendant  In  an  action  of  replevin  by  the  vendor,  has 
the  burden  of  showing  affirmatively  the  fact  and  time  of  bis  levy 
and  his  authority  In  the  premlscH,  Schwabeland  r.  Bucliicr,  fiS  N.  Y. 
St    831.  28  N.  Y.  Sup.  523. 


304  THE    LAW    OF    REPLEVIN. 

an  element  to  be  weighed,  it  must  be  remembered  that  consent 
of  a  person  to  the  sale  of  his  goods  means  something  more  than 
the  simple  ntterance  of  the  words  of  assent,  and  something  more 
than  a  manual  relinquishment  of  them.  It  must  be  an  act  of  the 
mind,  unclouded  by  fraud,  falsehood  or  duress  at  the  hands  of 
the  purchaser.  Whether  the  degree  of  fraud  is  sufficient  to  war- 
rant the  finding  of  an  indictment  or  not,  is  of  no  consequence  in 
a  civil  action.'*  In  such  case  the  law  holds  that  the  goods  did 
not  lawfully  come  into  the  possession  of  the  defendant.*" 

§  321.  Illustrations  of  the  rule.  When  the  defendant  recom- 
mended Lj  as  a  man  of  means,  and  induced  the  plaintiff  to  sell 
him  furniture,  L.  soon  after  absconded,  after  having  transferred 
the  furniture  and  other  goods  to  the  defendant.  The  plaintiff 
was  permitted  to  prove  that  the  defendant  had  recommended  L. 
in  like  manner  to  others,  and  that  the  goods  so  obtained  were 
transferred  to  the  defendant,  as  a  circumstance  to  show  knowl- 
edge on  his  part."  Defendant  by  forged  letters  of  recommen- 
dation, and  other  false  representations,  bought  goods,  and  paid 
in  bills  which  he  represented  to  be  accepted  by  a  wealthy  busi- 
ness man,  but  which  were  in  fact  accepted  by  an  accomplice  for 
fraudulent  purposes.  The  goods  were  delivered,  and  shortly 
after  levied  on  by  the  sheriff  with  an  execution.  In  trover  against 
the  sheriff,  it  was  held  no  property  passed  and  that  the  owner 
could  recover."  Where  one  represents  himself  or  his  firm  to  be 
solvent,  when  he  knows  it  to  be  insolvent,  and  purchases  with 
intent  not  to  pay,  such  fraud  will  avoid  the  sale,  and  the  owner 
may  sustain  replevin ;  "  and  the  administrator  of  the  defrauded 
vendor  may  sustain  the  action,  as  well  as  the  deceased  seller." 

§  ?>'2'2.  Not  material  at  what  time  the  fraudulent  repre- 
sentations were  made.  It  is  not  material  whether  the  fraud- 
ulent representations  were  made  at  the  exact  time  of  tlie  pur- 

"'  Irving  V.  Motly,  7  Bing.  543;  Poor  v.  Woodburn,  25  Vt.  234;  Acker  v. 
Campbell,  23  Wend.  373. 

^'Seaver  v.  Dingley,  4  Gr.  (Me.)  307;  Thurston  v.  Blanchard,  22  Pick. 
20;  Hall  v.  Gilmore,  40  Me.  581;  Gray  v.  St.  John,  35  III  239. 

"Allison  V.  Matthieu,  3  Johns.  235. 

«  Tamplin  v.  Addy,  in  note  to  Mowry  v.  Welsh,  8  Cow.  238. 

"Ash  V.  Putnam,  1  Hill,  (N.  Y.)  308;  Bristol  v.  Wilsmore,  1  Barn.  & 
Cress.  515;  Kilby  v.  Wilson,  Ry.  &  Moody,  (N.  P.)  178;  Atkin  v.  Bar- 
wick,  1  Stra.  165;  Johnson  v.  Peck,  1  Wood  &  Minot.  C.  C.  334;  Powell 
V.  Bardlee.  9  Gill.  &  J.    (Md.)    220. 

"  McKnight  v.   Morgan,  2  Barb.   171. 


TAKING    BY    THEFT.    FORCE    OR    FRAUD.  305 

chase  or  some  time  previous.  It  is  sufficient  if  the  goods  were 
obtained  through  their  influence;"  or  the  fraudulent  intent 
may  be  gathered  from  the  acts  of  the  purchaser  after  the  sale." 

§  323.  Goods  paid  for  with  worthless  note,  counterfei- 
money,  or  stolen  goods.  When  the  vendor  was  induced  by 
the  fraudulent  representations  of  the  buyer,  to  sell  goods  rjid  take 
the  notes  of  a  worthless  third  party  in  payment,  it  would  not  de- 
prive the  defrauded  vendor  of  his  right  to  his  goods,  even  when 
he  had  negotiated  the  note  for  value,  and  not  reclaimed  it,  unless 
he  had  knowledge  of  the  fraud  at  the  time  he  parted  with  it." 
So  where  one  purchase  goods  and  pays  for  them  with  counterfeit 
money,**  or  with  other  goods  which  he  has  stolen."'  In  these  and 
similar  cases  the  defrauded  vendor  may  recover  his  goods  from 
the  fraudulent  purchaser,  though  not  from  a  bona  Jide  purchaser 
from  such  party  for  value. 

§  324.  Replevin  against  attaching  creditors  In  such 
cases.  It  seems  to  be  the  law  that  when  one,  through  fraudu- 
lent representations  as  to  his  solvency,  purchases  and  obtains 
goods  on  credit,  and  they  are  subsequently  attached  by  his  cred- 
itors, that  the  defrauded  vendor  can  sustain  replevin  as  against 
the  creditors.  Of  course,  as  against  the  debtor  the  right  of  the 
attiiching  creditors  is  paramount,  but  they  can  only  sustain  their 
claim  on  the  ground  that  the  goods  belong  to  the  fraudulent  pur- 
chaser. The  purchaser's  only  title  to  them,  however,  being  fraud- 
ulent, and  having  been  rescinded  by  the  original  and  prior  owner, 
the  attiiching  creditors  cannot  resist  the  suit  of  the  defrauded 
vendor.^ 

§  325.  Or  against  an  assignee  for  the  benefit  of  credit- 
ors. So  in  ca.se  of  a  voluntary  a.s.slgumeiit  for  the  benetit  of 
creditors  of  goods  fraudulently  purchased,  the  assignment  passed 
no  title  and  conferred  no  right.s,  for  the  ol)vious  reason  that  the 
party  making  it  had  no  right  or  title  (as  against  the  plaintiff's), 
which  he  could  confer  on  anybody.  Therefore,  the  defendant's 
act  in  taking  possession  was  an  interference  with  the  i)Iaiii( ill's 
constructive   pos.session.     The  defendant's  act    in  assuming  do- 

"  Seaver  v.   Dlngley,  4  Groenleaf.   (Me.)    307. 

"Bowcn  V.  Schuler.  41  111.  194;  Allison  v.  Matthleu,  3  .Johns.  235. 
"  ManrilnK  v.  Alhee.  11  Allen,  520;    S.  C.  14   Allen.  8. 
"Green  t.  Humplirey.  50  Fa.  St.  213. 

"Tileomb  r.  Wooil,   .'58   Me.   5(;3;    Lee  v.   Tortwood.    41    .MIks.    111. 
■^  liumnKton    V.   Gerrlsh,    15   Mass.    158. 
20 


306  THE    LAW    OF    REPLEVIN. 

•million  over  the  jn'operty  was  none  tlie  less  an  invasion  of  the 
plaintiffs  rights  heeanse  he  did  not  intend  a  Avrong,  or  know  tliat 
he  was  committing  one.  The  law  gives  the  plaintiff  compensa- 
tion for  the  injury  he  sustains,  whether  the  defendant  intended 
it  or  not."'' 

§  320.  Does  not  lie  for  goods  sold  to  enable  the  pur- 
chaser to  violate  the  law,  even  though  there  may  have 
been  fraud  in  the  purchase.  Where  a  party  st)Ught  to  recover 
intoxicating  liquors  from  the  possession  of  the  sberitf,  who  had 
seized  them  on  process  of  attachment  against  the  goods  of  the 
purchaser,  on  the  ground  that  he  purcliased  tlieni  from  the  plain- 
tiff by  fraudulent  representations,  the  court  refused  to  sustain 
the  action,  saying  that  the  liquors  were  sold  to  enal)le  the  pur- 
chaser to  evade  the  law,  and  the  court  would  not  give  him  its 
aid." 

§  327.  For  goods  sold  to  an  infant,  when  he  avoids  pay- 
ment. When  goods  are  sold  to  an  infant  and  he  avoids  i)ay- 
ment  on  the  ground  of  infancy,  the  seller  may  rescind  the  sale 
and  replevy  the  goods." 

§  328.  For  goods  obtained  by  duress.  When  a  party 
falsely  and  maliciously,  without  probable  cause,  sue  out  a  ANar- 
rant  regular  in  form  and  cause  the  arrest  of  another,  and  thereby 
induce  him  to  deliver  goods  to  obtain  his  release,  the  party  so 
defrauded  may  sustain  replevin  for  his  goods,'^*  as  the  law  will  not 
permit  the  use  of  its  process  to  aid  in  the  perpetration  of  a 
fraud.^^  The  law,  however,  will  not  aid  a  party  to  enforce  a  con- 
tract made  to  defraud  others.  When  the  property  is  sold 
without  consideration  for  the  purpose  to  defraud  creditors,  the 
purchaser  cannot  sustain  replevin.'^" 

§  329.     The   general  rule   stated.     The   rule   is   concisely 
stated  in  a  Pennsylvania  case.     "  When  an  apparent   state  of 

"Farley  v.  Lincoln,  51  N.  H.  579;  Barrett  v.  Warren,  3  Hill,  350; 
Poor  V.  Woodburn,  25  Vt.  240.  Where  the  sale  is  procured  through 
fraudulent  representations,  if  the  vendee  holds  nothing  of  any  value 
he  may  sustain  replevin  or  trover  without  demand,  because  the  taking 
•was  tortious.     Thayer  v.  Turner,  8  Met.  550. 

"Marienthal  v.  Shafer,  6  Iowa,  226. 

^^  Badger  v.  Phinney,  15  Mass.  359. 

'-*  Foshay  v.  Ferguson,  5  Hill,  156. 

^  Watkins  v.  Baird,  6  Mass.  506. 

=•' Payne  v.  Bruton,  5  Eng.   (10  Ark.)  53. 


TAKING    BY    THEFT,    FORCE    OR    FRAUD.  307  ' 

ownership  of  property  produced  by  the  consent  or  collusion  is 
the  means  of  deceiving  third  persons,  the  owner  cannot  enforce 
his  rights  against  such  persons  in  replevin."" 

§  330.  Fraudulent  intention  of  purchaser  must  exist  to 
avoid  a  sale.  Where  a  party,  believing  himself  to  be  solvent, 
orders  goods  on  credit,  which  aie  shipped  and  delivered  to  him, 
his  subsequent  insolvency  or  inability  to  pay  will  not  be  ground 
for  rescinding  the  contract  of  sale.  In  such  case,  if  the  pur- 
chaser receives  the  goods  and  executes  a  note,  or  accepts  draft  in 
compliance  with  the  terms  of  the  contract,  the  vendors  cannot  in 
the  absence  of  fraud  at  the  time  of  the  purchase,  annul  the  con- 
tract and  sustain  replevin,  even  though  the  purchaser  knew  him- 
self to  be  insolvent  at  the  time  of  receiving  the  goods  and  ac- 
cepting the  draft.^*  If  the  purchaser,  at  the  time  of  the  arrival 
of  the  goods,  knowing  himself  to  be  insolvent,  should  refuse  to 
accept  them,  and  direct  their  return  to  the  vendor,  the  sale 
would  be  incomplete,  and  the  vendor  might  maintain  replevin  as 
against  any  creditor  who  should  attempt  to  seize  upon  them. 
Such  a  course  met  the  approval  of  Lord  Mansfield.*'  Or  per- 
haps the  receiving  of  the  goods  by  the  vendee  and  placing  them 
in  his  warehouse,  separate  and  apart  from  his  goods,  with  a  view 
to  their  return  intact,  with  the  intent  only  to  protect  them  from 
loss  or  injury  until  they  could  be  returned,  would  be  sufficient  to 
entitle  the  vendors  to  reclaim  them  against  creditors  who  might 
seize  them.**  ]\Iere  omission  to  disclose  insolvency  will  not  avoid 
a  sale,  a  purchase  made  during  an  honest  though  hopeless  at- 
tempt to  continue  business,  where  no  questions  are  asked  of  the 
purchaser,  is  not  fraudulent.  There  must  be  some  positive 
fraudulent  represent  at  iiju/' 

§  331.  Diligence  required  of  one  who  would  rescind  a 
sale  for  fraud,  return  or  tender  of  the  consideration.  The 
party  who  would  a.ssert  liis  title  to  pioperty  which  lias  bi-en  ob- 
tiiined  from  him  by  fraud  must  exerci.se  a  ceitain  degree  of 
diligence  to  ascertain  and  protect  his  rights  or  he  will  be  field  to 
have   waived  or  lost  them.     NVhcn  the  plaintilf  claimed  that  a 

"  DannelH  v.  Fitch.  H  I'u.  St.   J'J7. 
"Greaner  r.  Mullen.  15  Pa.  St.  206. 
"  Marman  r.  FlKhar.  1  Cowpf-r.  117. 
•"JaiinH  V.  GrifTln.  2  MeeH.  &  W.  022. 

♦' NIcholH  r.  I'lnnr-n.  18  N.  Y.  205;  Conyers  t'.  EuiiIh,  2  Mason.  237; 
Powell  r.  Dradlee.  9  GUI  ft  J.   (Md.)   220. 


COS  THE    LAW    OF    REPLEVIN. 

horse  was  stok'ii  from  him  by  K.  in  :i  suit  against  one  wlio 
claimed  to  be  a  bomijide  purchaser  from  K.,  the  fact  that  the 
phiintiff  liad  neglected  for  several  years  to  proceed  against  K. 
who  was  responsible,  and  who  lived  in  the  same  county,  was  held 
l)roper  defense.*"  Where  a  party  seeking  to  rescind  a  sale  on 
the  ground  of  fraud  has  received  any  valuable  consideration  for 
the  property,  he  must  put  the  other  party  in  as  good  condition 
as  he  was  before  by  restoring  to  him  whatever  he  has  paid  on 
the  contract.  Thus,  where  the  vendor  charges  fraud,  and  seeks 
to  set  aside  a  sale  for  which  the  purchaser  has  given  his  note,  he 
must  return  the  note."  The  party  seeking  to  rescind  is  not  re- 
quired, however,  to  deliver  the  note  or  other  consideration  in  ad- 
vance of  obtaining  the  goods  sold."  And  the  current  of  author- 
ities hold  it  is  sufficient  if  the  offer  to  surrender  be  made  on  the 
trial.*"'*  Where  the  fraudulent  party  has  so  complicated  the 
transaction  that  the  others  cannot  restore,  the  law  w  ill  only  re- 
quire him  to  restore  as  far  as  he  can  ; '"'''  but  unless  the  tender  be 
made  before  verdict  lit  will  be  too  late,  and  the  defendant  may 
have  a  new  trial.*' 

§  382.  What  amounts  to  a  return  of  property.  A  party 
claiming  to  be  damaged  l)y  false  representations  in  a  horse  trade, 
must  return  the  horse  he  received.  Merely  leaving  it  in  the  de- 
fendant's yard  without  any  notice  of  his  purpose  to  rescind  the 
contract,  although  he  sued  the  defendant  at  the  time,  is  not  a 
rescission  within  the  meaning  of  the  rule.  Had  he  tendered  the 
horse  to  defendant,  or  taken  reasonable  means  to  do  so,  and  the 
defendant  had  avoided  him,  it  might  have  been  sufficient.'''''     He 

•"Welker  v.  Wolverkuehler,  49  Mo.  35;  Smith  v.  Field,  5  Term  R.  403, 
(211);  Furniss  v.  Hone.  8  Wend.  248;  Mackinley  v.  M'Gregor,  3  Whart. 
(Pa.)  368;  Coghill  v.  Boring,  15  Cal.  213.  Compare  Marston  v.  Bald- 
win, 17  Mass.  611. 

"Nichols  V.  Michael,  23  N.  Y.  264;  Wilbur  v.  Flood,  16  Mich.  40. 

"  Poor  V.  Woodburn,  25  Vt.  239. 

"Weed  V.  Page,  7  Wis.  511;  Nichols  v.  Michael,  23  N.  Y.  264;  Jen- 
nings V.  Gage,  13  111.  611;  Nellis  v.  Bradley,  1  Sandf.  (N.  Y.)  560; 
Thurston  v.  Blanchard,  22  Pick.  20;  Coghill  v.  Boring,  15  Cal.  217;  Kim- 
ball V.  Cunningham,  4  Mass.  502;  Poor  v.  Woodburn,  25  Vt.  235;  Voor- 
hees  V.  Earl,  2  Hill,  288;  Buchenau  v.  Horney,  12  111.  337;  Ryan  v. 
Brant,  42  111.  79;  Smith  v.  Doty,  24  111.  163;  Matteawan  Co.  v.  Bentley, 
13  Barb.  641. 

*'  Masson  v.  Bovet,  1  Denio,  73. 

«■  Ayres  v.  Hewett,  19  Me.  286;   Manning  v.  Albee,  11  Allen,  520. 

"Thayer  v.  Turner,  8  Met.  553;  Perley  v.  Balch,  23  Pick.  283. 


TAKING    B\     THEFT.    FORCE    OR    FRAUD.  309 

must  put  the  other  puity  in  the  same  condition  he  was  before, 
/.  e.,  he  must  restore  what  he  received  before  he  can  sustain 
replevin.*' 

§  ooo.  Does  not  lie  against  an  innocent  purchaser  from 
a  fraudulent  purchaser.  The  right  of  a  vendor  to  recover  from 
one  who  fraudulently  purchases  his  goods  with  the  intent  not 
to  pay  for  them,  is  clear  and  well  settled,  but  when  the  fraudulent 
purchaser  has  sold  and  tran.sferred  the  goods  to  another,  who  has 
no  notice  of  the  fraud  and  who  has  paid  value  for  them,  the 
question  as  to  the  respective  riglits  of  the  deceived  vendor  and 
the  innocent  purchaser,  presents  more  difficulty."" 

§  334.  The  distinction  between  acquiring  goods  by  theft 
or  trespass,  or  by  fraudulent  purchase.  Where  goods  are 
acquired  by  theft  or  robbery,  the  taker,  as  we  have  seen,  acquires 
no  title  and  can  convey  none,  but  where  goods  are  bought,  and 
the  vendor  of  his  own  act  delivers  them  to  the  purcliaser  with 
bill  of  sale  or  other  evidences  of  ownership,  no  matter  what 
fraudulent  practices  have  induced  the  sale  and  delivery,  the  pur- 
chaser takes  a  title,  voidable  it  is  true,  at  the  pleasure  of  the  de- 
frauded vendor,  but  until  declared  void  by  him,  it  is  perfectly 
good  as  against  all  others.  If,  therefore,  while  the  property  is  so 
in  the  hands  of  the  purchaser,  and  before  the  original  owner 
knows  of  or  has  time  to  rescind  the  sale,  the  goods  are  sold  and 
delivered  to  an  innocent  third  party  who  pays  full  value  for  them, 
the  latter  is  not  regjirded  as  a  wrongful  taker  or  detainer,  and  the 
current  of  authorities  is  that  as  against  him,  replevin  will  not 
lie." 

•Conner  v.  Henderson,  15  Mass.  320;  Kimball  v.  Cunningham.  4 
Mass.  502;  Thayer  i'.  Turner,  8  Met.  552;  Thurston  r.  Blanrhard.  22 
Pick.   18. 

'•Consult  Mitchell  v.  Worden,  20  Barb.  253;  Nichols  v.  Pinner,  18 
N.  Y.  2'jr,:  Malcom  r.  Loveridge,  13  Barb.  372;  Jennings  v.  Gage,  13  111. 
Oil;  Ohio  &  .Miss.  R.  R.  Co.  v.  Kerr,  49  111.  458;  Powell  r.  Bradlee,  9 
Gill.  &  J.  (.Md.)  220;  Shufeldt  v.  Pease,  IC  Wis.  (159.  Bona  fide  pur- 
chaser holds.  Butters  r.  Haughwout,  42  111.  18;  Kranert  i'.  Simon.  Ci 
111.  344;  Brundage  v.  Cam|),  21  111.  330;  Burton  r.  Curyea,  40  111.  320; 
Powell  V.  Bradlee,  9  Gill.  &  .1.   (Md.)   220. 

"SaltuH  V.  Everett,  20  Wend.  2f.7;  Sargent  v.  Sturm.  23  Cal.  362; 
Covin  V.  Hill,  4  Denlo.  323;  Johnson  v.  Peck.  1  Woodbury  &  M.  C.  C. 
334;  Ingersoll  v.  EmmorHon.  Carter,  (Ind.)  771;  Nash  v.  Mosher,  19 
Wend.  433;  Hyde  v.  Noble.  13  N.  H.  494;  Hurst  v.  Owonnap,  2  Starkie, 
306;  Root  v.  French,  13  Wend.  570;  Mowrey  r.  Walsh,  8  Cow.  238;  Neal 


310  THE    LAW    OF    REPLEVIN. 

§  335.     The  same.     Observations  upon  this  rule.     There 

have  been  decisiuiis  which  hold,  that  he  who  purchases  from  one 
who  act|uire(l  i)ossession  of  the  goods  by  fraiKhdeiit  purchase 
from  the  owner,  is  in  all  respects  treated  as  a  trespasser  ;  that  he 
cannot  avail  himself  of  the  conveyance  to  justify  or  excuse  the 
taking."-  In  ^SaltHS  v.  Everett^  20  Wend.  275,  Senator  Vkkplank 
said :  "  An  honest  purchaser  under  a  defective  title  cannot  hold 
against  the  true  owner."  There  is  no  general  principle  of  law  or 
equity  that  the  right  of  a  honajide  purchaser  shall  be  regarded  as 
superior  to  the  prior  right  of  the  legal  owner.  To  say  that  of  two 
innocent  men,  he  should  suffer  most  who  trusts  most,  would 
authorize  anyone  to  purchase  from  a  fraudulent  bailee  if  this  rule 
be  taken  in  the  generally  received  acceptation  of  the  doctrine. 
But  does  he  trust  more  who  delivers  possession  of  his  goods  to  a 
bailee  when  the  goods  themselves  are  easily  identified,  or  he  who 
parts  with  his  money  for  goods  upon  the  simple  fact  that  the 
vendor  has  possession  of  them.  The  rule  should  be,  that  as  be- 
tween two  equally  innocent  men,  his  right  should  prevail  which 
is  prior  in  point  of  time."  He  who  has  been  led  to  part  with 
his  goods  by  fraud  has  not  committed  a  fault,  but  suffered  a 
misfortune. 

§  336.  The  same.  The  same  question  was  presented  in  Ar- 
kansas, where  it  was  said:  "It  has  been  contended  that  the 
owner  has  consented  to  the  taking ;  and  if  that  were  so,  it  would 
be  a  sufficient  reply  in  replevin,  at  least  for  taking.  In  an  action 
against  an  innocent  purchaser  of  chattels  Avithout  notice,  and  with 
no  agency  in  the  trespass,  we  can  find  no  authority  which  would 
authorize  a  recovery  in  an  action  of  trespass,  and  therefore  con- 
clude that  replevin  for  an  unlawful  taking  is  not  supported  by 
such  proof."  '*  Xotwithstanding  the  preceding  cases  to  the 
contrary,  the  rule  is  supported  by  a  large  preponderance  of  the 
authorities  that,  as  against  an  innocent  purchaser  of  a  chattel 
from  a  fraudulent  purchaser,  without  notice  of  any  adverse  claim, 
and  wiih  no  agency  in  the  fraud  Ijy  which  they  were  obtained, 

V.  Williams,  18  Me.  391;  Farley  v.  Lincoln,  51  N.  H.  576;  Cobb  v.  Dows, 
10  N.  Y.  339;  Williams  v.  Merle,  11  Wend.  80;  Covill  v.  Hill,  4  Denio, 
323;  Deshon  v.  Bigelow,  8  Gray,  (Mass.)   159. 

"=  McKnight  v.  Morgan,  2  Barb.  171;  Galvin  v.  Bacon,  11  Me.  28;  Lee 
V.  Portwood,  41  Miss.  109. 

"Ash  V.  Putnam,  1  Hill,  302. 

'*Trapnall  v.  Hattier,  1  Eng.   (Ark.)  23. 


TAKING    BY    THEFT,    FORCE    OR    FRAUD.  311 

there  is  no  authority  to  authorize  a  recovery."  The  loss,  must 
fall  on  him  who  ivas  foolish  enough  to  part  with  his  goods  before 
he  had  security.'* 

§  337.  The  same.  A  contract  originating  in  fraud  may  be 
rescinded  at  the  option  of  the  injured  party,  and  the  seller  may 
reclaim  the  goods,  provided  the  rights  of  a  tliird  party,  as  a  bona 
Jide  purchaser,  have  not  intervened.  But  the  right  of  the  seller 
to  rescind  exists  only  so  long  as  the  goods  are  in  the  hands  of  the 
fraudulent  purchaser.  Until  the  seller  has  made  use  of  his  option 
to  rescind  the  sale,  the  purchaser,  no  matter  what  fraud  has  been 
practiced,  takes  a  title  which  may  or  may  not  be  ratified  by  the 
vendor;  and  if,  while  so  holding,  he  sells  to  abona^/ide  purchaser 
for  value,  it  will  pass  title."'  In  Chicago  Dock  Co.  v,  Foster,  48 
111.  507,  the  court  lays  down  the  law  without  qualification,  that  an 
innocent  purchaser  for  value,  from  one  who  has  fraudulently 
obtained  the  goods  from  the  owner,  will  be  protected  in  replevin 
by  the  original  owner.  Where  certain  warrants  against  the 
State  of  California  were  paid  into  the  State  treasury,  and  after- 
wards stolen,  and  sold  by  the  thief  to  an  innocent  holder,  who 
again  presented  them  to  the  State  officer,  who,  in  ignorance  of  the 
fact  that  they  had  once  been  paid,  issued  other  bonds  for  them, 
the  State  was  held  liable  on  the  bonds  so  issued,  and  in  an  action 
in  the  nature  of  dctinet,  by  the  State,  recovery  was  denied.'** 

§  338.  Rule,  where  goods  fraudulently  purchased  are 
taken  in  payment  of  a  pre-existing  debt.  But  where  goods 
ol)tained  Ity  fraud  arc  used  in  payment  of  a  pre-existing  debt  of 
the  wrongdoer,"  or  where  they  have  been  mortgaged  or  pledged, 

"Harrison  v.  M'Intosh,  1  Johns.  384;  Ditson  v.  Randall,  33  Me.  202; 
Bristol  I'.  Wilsmore,  1  Ear.  &  C.  51  fj;  Kilby  v.  Wilson.  Ry.  &  Moody.  (N. 
P.)   178181. 

"Jennings  v.  CaRe,  13  111.  f.lO;  Harri.s  r.  Smith.  ;{  S.  &  R.  (Pa.)  21; 
BrundaKG  v.  Camp,  21  111.  331;  Powell  v.  Bndlee,  9  Gill  &  .1.  (Md.)  220; 
Butters  v.  Houghwout,  42  111.  18;  Burton  v.  Curyea,  40  111.  320;  Aren- 
dale  V.  Morgan,  5  Sneod,  (Tenn.)  704;  Malcolm  v.  Loverldge,  13  Barb. 
372;  Keyser  v.  Harbeck,  3  Duer.  373;  Williams  v.  Given,  fi  Gratt.  208; 
Jennings  v.  Gage.  13  III.  CIO;  Caldwell  v.  Bartlott.  3  Duer.  311;  Smith 
V.  Lynes,  1  Seld.  41;  Klngsford  v.  Merry,  34  E.  L.  &  Eq.  (;07. 

"Meers  v.  Waples,  3  HouHt.  (Del.)  581;  Hoffman  r.  Nobio.  G  Met. 
75;   Root  V.  Fremh,  13  Wend.  57(»;   Smith  r.  I.yiies.  1  Seld.   ( N.  Y.)   47. 

"State  of  Califo.nia  r.  WellH,  Farn;o  &  Co.,  15  Cal.  34<i. 

"Sargent  r.  Sturm,  23  Cal.  3<;0;  Root  v.  French,  13  Wcn.l.  57(»; 
Coddington  v.  Bay.  20  Johns.  C37;  Butters  v.  llaughwout,  12  111.  18; 
Durell  V.  Haley.  1  Paige,  492. 


312  THE    LAW    OF    REPLEVIN. 

or  assigned  to  trustees  to  pay  the  debts  of  the  fraudulent  pur- 
chaser, the  owner  may  pursue  and  recover,  as  a  purchaser  for  a 
pre-existing  debt,  or  a  pledgee  or  mortgagee  is  not  regarded  in 
the  same  light  as  a  purchaser  for  vahie;""  and  the  same  rule  ap- 
plies where  goods  so  obtained  are  seized  on  legal  process  by  a 
creditor  of  the  fraudulent  purchaser ;  *"  one  of  the  reasons  being, 
that  the  only  consideration  in  these  latter  cases  is  the  extinguish- 
ment of  a  debt  which  can  be  revived  by  setting  aside  or  rescind- 
ing the  transfer ;  and  in  such  case  the  party  is  no  worse  than  he 
was  before.  He  is  not  in  the  situation  of  one  who  has  parted 
with  his  money."- 

§  339.  Sale  of  goods  upon  condition.  Sales  upon  condi- 
tion, express  or  implied,  as  to  delivery,  payment  or  security,  are 
of  daily  occurrence.  These  conditions  are  sometimes  broken  by 
accident  or  design,  and  the  effect  of  the  breach  is  a  question  which 
frequently  demands  adjustment  in  the  action  of  replevin. 

§  340.  Non-payment  for  goods  sold  on  credit  does  not 
warrant  a  rescission  of  the  contract.  In  the  absence  of  fraud 
or  deceit  on  the  part  of  the  purchaser,  simple  non-payment  for 
goods  bought  on  credit  is  not  sufficient  to  warrant  a  recision  of 
the  contract.  The  vendor  has  parted  with  his  goods  under  a  full 
knowledge  of  all  the  facts,  and  the  neglect  of  the  purchaser  to 
pay  the  stipulated  price  is  one  of  the  contingencies  which  he  is 
presumed  to  have  estimated,  and  in  the  absence  of  fraud,  or  the 
reservation  of  a  special  lien,  the  seller  cannot  recover  his 
goods.*' 

§  341.  Rule  where  the  vendor  stipulates  to  retain  title 
or  possession  until  payment.  Where,  however,  the  vendor 
stipulates  to  retain  possession  until  the  jjurchase  price  is  paid,  he 
may  sustain  replevin  against  anyone  who  wrongfully  takes  or  de- 
tains the  goods  from  his  possession  in  violation  of  the  conditions 
of  the  sale.***  When  the  plaintiffs  sold  and  delivered  a  safe,  with 
the  express  agreement  that  it  should  remain  tlieir  property  until 
paid  for,  and  the  purchaser  made  no  payments,  but  the  safe  was 

''*•  Parker  v.  Patrick,  5  D.  &  E.  102,  175;  Somes  v.  Brewer,  2  Pick.  184; 
Rowley  v.  Bigelow,  12  Pick.  307;  Lloyd  v.  Brewester,  4  Paige,  537. 

"Durell  V.  Haley,  1  Paige,  492;  Adams  v.  Smith,  5  Cow.  280;  Wiggin 
V.  Day,  9  Gray,   (Mass.)   97. 

»*  Farley  v.  Lincoln,  51  N.  H.  577. 

"McNail  V.  Ziegler,  68  111.  224. 

"Wills  V.  Barrister,  36  Vt.  220;  Jessop  v.  Miller,  1  Keyes,  (N.  Y.)  321. 


TAKING    BY    THEFT.    FORCE    OR    FRAUD.  313 

levied  on  under  execution  and  sold,  the  plaintitl's  were  regarded  as 
the  owners  and  permitted  to  sustain  replevin  -/^  and  the  rule  is 
tolerably  well  established,  that  in  such  case  sale  by  the  condi- 
tional vendee  to  an  innocent  purchaser  for  value,  would  not 
debar  the  owner  from  pursuing  and  receiving  his  goods.  The 
rule  is,  that  when  tlie  vendor  retains  title,  the  vendee  takes  none, 
and,  of  course,  can  convey  none  by  any  sale  he  may  make."** 

§  342.  The  same.  Illustrations.  Goods  were  sold  at  auc- 
tion, to  be  paid  for  by  note  of  a  third  party,  at  six  months,  after 
the  goods  were  delivered,  but  before  the  condition  had  been  com- 
plied with,  they  were  seized  on  attachment  by  creditors  of  the 
buyer.  The  seller  was  allowed  to  sustain  replevin.  The  delivery 
was  not  regarded  as  a  waiver  of  the  condition  in  this  case." 

§  343.  Waiver  of  conditions  of  sale.  Goods  sold  on  con- 
dition and  delivered  without  insisting  on  tlie  condition,  held, 
prt'yna  facie  a  waiver  of  the  condition,  liable  to  be  explained  or 
rebutted  by  proof.**  A  tirm  in  Omaha  bought  cigars  in  New 
York,  for  wdiich  they  were  to  give  their  note  at  four  months- 
Before  the  goods  arrived  the  purchaser  went  into  bankruptcy ; 
some  da3'^s  tliereafter  the  expressman  brought  the  goods  to  the 
store  of  the  buyer,  and  the  V.  S.  Marshal  then  in  possession  took 
them,  the  vendors  were  permitted  to  sustain  replevin.  The  con- 
dition of  the  sale  had  not  been  complied  with,  the  note  of  the 
purchaser  had  not  been  given,  and  the  contract  impliedly  required 
the  note  of  the  defendants  when  solvent,  not  bankrupt.*"  Where 
goods  are  sold  for  cash  on  delivery,  and  the  proof  tends  to  show  a 

"  Bradshaw  v.  Warner,  54  Ind.  58;  Hodson  v.  Warner.  (.0  Ind.  214; 
Leven  v.  Smith,  1  Denio,  571;  Jennings  v.  Gage,  13  111.  CIO;  Harris  r. 
Smith,  3  S.  &  R.  (Pa.)  21;  Tully  v.  Fairly,  51  Ind.  311. 

■*  Deshon  v.  Blgelow,  8  Gray,  159;  Hotchkiss  v.  Hunt,  40  Me.  213; 
Rowe  V.  Sharp,  51  Pa.  St.  27;  Coghlll  v.  Hartford  &  N.  H.  R.  R..  3  Gray, 
545;  Sargent  v.  Metcalf,  5  Gray.  300;  Burbank  t'.  Crooker,  7  Gray,  158; 
Holmark  v.  Molin,  5  Cold.  (Tenn.)  482;  Eaton  v.  Munroe,  52  Me.  63; 
Meldrum  v.  Snow,  9  Pick.  441. 

"Hill  V.  FVeoman,  3  Cush.  257;  Kcoler  r.  Field.  1  Paige.  (Ch.)  312; 
HusHey  v.  Thornton.  4  Mass.  405;  Marston  v.  Baldwin.  17  Mass.  606; 
Smith  V.  Dennie.  6  Pick.  262;  Coplan  v.  BoBquet.  4  Wash.  C.  C.  588; 
HarrlH  v.  Smith.  3  8.  &  R.  (Pa.)  20. 

"Pitt  V.  Owen,  9  Win.  152;  Lupin  v.  Marie.  6  Wend.  77;  Smith  r. 
Lynea,  1  Seld.  43;  KinHcy  v.  LcgKett.  71  N.  Y.  387;  Ivea  f.  lluiiiplueyH, 
1  E.  I).  Smith.  196;   Leven  v.  Smith.  1  DenIo,  671. 

•Sutro  V.  Hoile,  2  Neb.  190.     See  Farley  v.  Lincoln,  51   .\.  H.  579. 


314  THE    LAW    OF    REFLEVIN. 

usage  or  custom  of  deliveriug  the  goods  without  demanding  in- 
stant payment,  and  goods  so  sold  are  actually  delivered  without 
payment  at  the  time  of  delivery,  the  court  may  leave  it  to  the 
jury  to  determine  whether  the  delivery  was  made  in  reference  to 
the  usage,  and  no  waiver  of  the  cash  payment,  or  whether  the 
delivery  was  unconditional.  If  the  delivery  was  with  reference 
to  the  usage,  and  without  intention  to  i)ass  title,  replevin  will 
lie.'^  From  these  and  kindred  cases  the  general  rule  may  be 
gathered,  that  a  sale  of  goods  upon  condition  does  not  vest  the 
title  in  the  purchaser  until  the  condition  shall  have  V)een  com- 
plied with:  That  in  the  keeping  of  conditions  even  where  they 
are  express,  some  latitude  is  allowed,  and  the  seller  does  not  for- 
feit his  right  by  reasonable  confidence  in  the  integrity  of  the  pur- 
chaser and  his  ability  to  keep  his  contract ;  and  if  in  such  case 
the  buyer  refuse  to  i)erform  the  conditions,  the  seller  may  rescind 
the  bargain  and  retake  his  goods.  If,  however,  the  seller  do  any 
act  amounting  to  a  waiver  of  the  conditions,  he  forfeits  his  right 
to  pursue  his  goods. 

"'^Powell  V.  Bardlee,  9  Gill.  &  J.  (Md.)   220. 

Note  XX.  Bona  Fide  Purchaser  Protected. — Bona  fide  purchaser 
from  one  to  whom  the  plaintiff  has  actually  sold  the  goods  and  caused 
them  to  be  delivered,  is  protected,  though  the  first  purchaser  obtained 
them  by  fraud,  Singer  Co.  v.  Sammons,  49  Wis.  316,  5  N.  W.  788; 
Hochberger  v.  Baum,  85  N.  Y.  Sup.  385;  Sadler  v.  Lewers,  42  Ark.  149; 
Pinkerton  v.  Bromley,  128  Mich.  23G,  87  N.  W.  200;  Perkins  v.  Ander- 
son, 65  la.  398,  21  N.  W.  696.  And  one  who  in  good  faith  advances 
money  and  accepts  a  mortgage  from  the  fraudulent  purchaser,  is 
protected,  Aultman  v.  Steinan,  8  Neb.  109.  An  attorney  who  accepts 
a  mortgage  to  secure  his  fees  for  framing  a  deed  of  assignment  for  the 
benefit  of  creditors,  and  defending  the  same,  and  who  takes  without 
notice  of  any  fraud  in  the  purchase  of  the  goods  is,  to  the  value  of 
the  services  rendered  before  he  has  notice  of  the  fraud,  preferred  to 
the  vendor  who  has  been  induced  to  part  with  his  goods  by  the  fraud 
of  the  assignor,  Meyers  v.  Bloon,  20  Tex.  Civ.  Ap.  554,  50  S.  W.  217. 
And  fraud  in  procuring  a  mortgage  cannot  be  set  up  by  the  mortgagor 
against  one  who,  in  good  faith,  purchased  at  the  foreclosure  sale, 
Jumiska  v.  Andrews,  87  Minn.  515,  92  N.  W.  470.  One  who  attaches 
goods  at  the  request  of  the  person  actually  in  custody,  believing  in 
good  faith  that  such  custodian  is  the  true  owner,  is  excused  if  the 
act  is  such  as  would  be  excused  in  case  the  custodian  was  the  finder 
of  the  goods  or  was  lawfully  entrusted  with  their  custody,  Mohr  v. 
Laurgan,  162  Mo.  474,  63  S.  W.  409.  In  Gillilan  v.  Kendall,  26  Neb.  82, 
42  N.  W.  281,  it  was  held  that  a  mortgage  upon  a  growing  crop  can- 


TAKING    BY    THEFT.    FORCE    OR    FRAUD.  315 

not  be  asserted  against  one  who  after  the  harvest  purchases  the  grain  at 
his  elevator,  without  actual  notice  of  the  mortgage.  The  rule  is 
otherwise  if  the  purchaser  has  notice  of  the  identity  of  the  grain  with 
the  mortgaged  crop,  Fines  v.  Bolin,  36  Neb.  621,  54  N.  W.  990. 

Equity  will  not  enforce  an  equitable  right  or  lien  as  against  an 
intervening  purchaser  for  value  without  notice.  Anchor  Co.  v.  Burns. 
32  Ap.  Div.  272,  52  N.  Y.  Sup.  1005.  Where  a  statute  provides  that  a 
sale  by  any  insolvent  intended  to  defraud  is  void,  an  exception  in 
favor  of  one  who  purchases  in  good  faith  will  be  implied.  Bobilya  v. 
Priddy,  68  O.  bt.  373,  67  N.  E.  736. 

Bona  Fide  Purchaser  'Sot  Protected. — Bona  fide  purchaser  from  a 
thief,  or  one  who  has  no  title  or  right  to  dispose  of  the  goods,  is  not 
protected,  Knox  v.  Heliums,  38  Ark.  413;  Rosum  v.  Hodges,  1  S.  D. 
308,  47  N.  W.  340.  9  L.  R.  A.  817;  Spooner  v.  Holmes,  102  Mass. 
503;  Gassner  r.  Marquardt,  76  Wis.  579,  45  N.  W.  074;  Prime  v.  Cobb. 
63  Me.  200;  Kerfoot  v.  State  Bank,  14  Okl.  104,  77  Pac.  46;  McKinnis  v. 
Little  Rock  Co..  44  Ark.  210;  Milligan  v.  Brooklyn  Co.,  34  Misc.  55. 
68  X.  Y.  Sup.  744;  Mann  v.  Arkansas  Co.,  24  Fed.  261;  Nelson  v.  Graff, 
12  Fed.  389;  Hentz  v.  The  Idaho,  3  Otto,  (93  U.  S.)  575,  23  L.  Ed.  978: 
€.  g..  one  who  has  previously  sold  and  delivered  the  same  goods  to 
another.  Bright  v.  Miller,  95  Mo.  Ap.  270,  68  S.  W.  1061.  Nor  is  one 
■who  purchases  from  a  person  having  no  right  to  sell  the  goods,  even 
though  in  possession  with  the  owner's  consent  under  an  agreement 
for  purchase,  Couse  v.  Tregent,  11  Mich.  65;  nor  where  the  title  never 
passed  from  the  owner,  Jennings  v.  Gage,  13  Ills.  610;  e.  g.,  as  where 
the  sale  was  upon  condition,  the  vendor  reserving  the  title.  Roof  v. 
Chattanooga  Co.,  36  Fla.  284,  18  So.  597;  or  where  the  goods  were 
sold  and  delivered  to  M,  the  seller  supposing  the  purchase  to  be  for 
account  of  and  by  authority  of  S,  and  the  buyer,  knowing  this,  made 
no  effort  to  undeceive  him,  Mayhew  v.  Mather,  82  Wis.  355,  52  N.  W. 
436.  A  purchaser  of  a  mere  equity  is  not  entitled  to  protection,  Cali- 
fornia Association  v.  Stelling.  141  Calif.  713,  74  Pac.  320.  And  one 
whose  goods  have  been  taken  by  a  robbery,  does  not  lose  title  by  fail- 
ing to  prosecute  the  wrong-doer,  even  for  several  years  and  even  though 
they  reside  in  the  same  county,  and  the  robber  Is  pecuniarily  respons- 
ible, Welker  v.  Woolvorkuehlcr.  49  Mo.  35.  The  state  does  not  lose 
title  to  logs  cut  upon  the  public  land  by  failing  to  assert  it,  State  v. 
Patten,  49  Me.  383. 

Where  one  purchases  an  unfmlslud  railway,  knowing  that  the  st'llor 
is  embarrassed,  and  that  a  portion  of  the  oquipmont  Is  not  yet  In- 
stalled, and  omits  to  make  Inquiry,  upon  the  as.suinptlon  that  liens 
may  exist,  a  Jury  may  find  that  he  is  not  a  bona  fide  purchaser.  Hogan 
V.  Detroit  Company.  MUh.   103   N.   W.   542. 

Negotiable  Paper.  Corporate  f<tork8,  etc. — Coupon  bonds  like  a  bank 
note  pass  by  delivery,  and  one  who  lends  money  on  deposit  ihoreof 
as  rollateral  security.  Is  not  affected  by  want  of  title  In  the  borrower. 
Gibson  V.  Lenhart,  111  Pn.  St.  f.24.  5  Atl.  52.  The  depositary  who  has 
received  the  bonds  for  the  lender  cannot  retain  thi-m  on  the  Kioutid 


316  THE    LAW    OF    REPLEVIN. 

of  a  prior  pledge  to  another,  /(/.  The  rule  is  the  same,  although  the 
lender  may  know  of  suspicious  circumstances  attending  the  possession, 
Spooner  r.  Holmes,  102  Mass.  503.  And  one  who,  in  the  usual  course 
of  business  buys,  in  good  faith  and  for  value,  a  stolen  promissory  note 
payable  to  bearer  and  which  is  endorsed  in  blank,  obtains  a  good  title, 
Walters  v.  Tielkemeyer,  72  Mo.  Ap.  371.  The  transfer  of  a  negotiable 
note  by  mere  delivery  gives  no  right  as  against  a  prior  assignee,  Moore 
V.  Finger,  128  Calif.  313,  60  Pac.  933.  But  one  who  carelessly  leaves 
in  possession  of  another  such  a  promissory  note,  cannot  recover  it  from 
one  to  whom  the  bailee  has  assigned  it  in  the  usual  course  of  business 
for  value  without  notice.  Id.  And  one  who,  in  good  faith,  lends  money 
on  pledge  of  a  warehouse  receipt,  will  be  protected  even  though,  as 
between  the  former  owner  of  the  goods  and  the  one  who  deposited 
them  in  the  warehouse,  the  title  never  passed,  and  the  delivery  of 
the  goods  was  obtained  by  fraud,  Chicago  Co.  v.  Foster,  48  Ills.  507; 
but  see  Canadian  Bank  v.  McRea,  106  Ills.  281. 

If  a  bill  of  lading  is  once  assigned  or  endorsed  generally  by  the 
original  holder,  upon  or  with  a  view  to  the  sale  of  the  goods,  a  subse- 
quent transfer  to  a  bona  fide  purchaser  may  give  him  title  as  against 
the  owner;  but  so  long  as  the  bill  of  lading  remains  in  the  hands  of 
the  original  holder  or  an  agent  entrusted  with  it  for  a  special  pur- 
pose and  not  authorized  to  sell  or  pledge  the  goods,  one  who  acquires 
possession  without  the  authority  of  the  owner,  though  with  the  assent 
01  the  agent,  has  no  title  as  against  the  principal,  Stollenwerck  v. 
Thatcher,  115  Mass.  224.  Corporate  stock  is  not  negotiable,  even  though 
bearing  a  blank  power  of  attorney  to  transfer,  Anderson  v.  Nicholas, 
28  N.  Y.  600;   Morton  v.  Preston,  18  Mich.  60. 

Plaintiff  took  a  promissory  note  in  the  name  of  her  son  for  moneys 
actually  advanced  by  her  and  belonging  to  her;  she  always  retained 
possession  of  the  note.  After  its  maturity  the  son  surreptitiously 
obtained  the  note  and  endorsed  it  to  the  defendant,  who  relied  upon 
his  apparent  title  and  paid  value.  Held,  that  defendant  took  no  title 
and  plaintiff  might  recover  the  note  in  replevin,  Merrell  v.  Springer, 
123  Ind.  485,  24  N.  E.  258.     But  see  Clow  v.  Yount,  93  Ills.  Ap.  112. 

^^"ho  is  a  Bona  Fide  Purchaser. — One  who  buys  in  payment  of  a 
precedent  debt  is  not  a  bona  fide  purchaser.  Fines  v.  Bolin,  36  Neb. 
621,  54  N.  W.  990;  Grever  v.  Taylor,  53  O.  St.  621,  42  N.  E.  829;  but  see 
Feder  v.  Abrahams,  28  Mo.  Ap.  454;  nor  one  who  purchases  at  his  own 
sale,  and  credits  the  amount  of  his  bid  on  the  execution,  Avery  v. 
Popper,  Tex.  Civ.  Ap.  45  S.  W.  951;  nor  one  who  accepts  a  transfer 
of  the  goods,  or  a  mortgage,  as  security  for  a  precedent  debt,  Gulledge  v. 
Slayden  Co.,  75  Miss.  297,  22  So.  952;  National  Bank  v.  Rogers,  166  N. 
Y.  380,  59  N.  E.  922;  Gafford  v.  Stearns,  51  Ala.  434;  nor  is  the  sheriff 
who  levies  an  execution  upon  goods  which  have  been  obtained  by  the 
defendant  in  the  execution,  by  fraud  practiced  upon  the  owner,  Des- 
becker  v.  McFarline,  42  Ap.  Div.  455,  59  N.  Y.  Sup.  439;  atfirmed,  166 
N.  Y.  625,  60  N.  E.  1110;  nor  is  the  attaching  creditor  nor  the  sheriff 
■who  levies  the  attachment.  Wise  v.  Grant,  140  N.  Y.  593,  35  N.  E.  1078; 


TAKING    BY    THEFT,    FORCE    OR    FRAUD.  317 

nor  an  assignee  for  creditors.  Joslin  v.  Cowee,  CO  Barb.  49;  Campbell 
Co.  V.  Walker,  22  Fla.  412;  State  r.  Patten,  49  Me.  383;  Kratzenberger 
V.  Leedom,  Tenn.  52  S.  W.  35;  Lee  v.  Simmons,  65  Wis.  523,  27  N.  W. 
174;  Peninsula  Co.  v.  Ellis,  20  Ind.  Ap.  491,  51  N.  E.  105;  nor  is  one 
who  at  the  time  of  payment  of  the  price  has  notice  of  the  prior  rights 
of  a  third  person,  although  he  bargained  for  the  goods  without  such 
notice.  Western  Stage  Co.  v.  Walker,  2  la.  504;  Maddox  v.  Reynolds. 
Ark.  81  S.  W.  603;  nor  one  who  buys  from  a  tenant  in  common,  with 
notice  that  the  vendor  has  pledged  his  interest  to  his  co-tenant,  Harkey 
V.  Tillman,  40  Ark.  551.  Wilful  ignorance  is  equivalent  to  notice, 
Jones  V.  Glathart,  100  Ills.  Ap.  630.  And  purchase  at  a  grossly  in- 
adequate price  may  raise  a  presumption  of  notice.  One  who  buys 
for  five  dollars  the  promissory  note  of  a  solvent  person  in  good  credit, 
for  the  principal  sum  of  three  hundred  dollars,  is  not  a  bona  fide 
holder.  DeWitt  v.  Perkins,  22  Wis.  473.  Actual  payment  must  be 
shown;  giving  a  promissory  note  is  not  payment.  Id.  The  question 
as  to  whether  one  is  a  b07ia  fide  purchaser  or  not,  so  far  as  depends 
upon  matter  of  fact,  is  for  the  jury,  Cass  r.  Gunnison,  58  Mich.  108, 
25  N.  W.  52. 

Burden  of  Proof. — Defendant  claiming  under  a  purchase  from  one 
who  obtained  the  goods  by  fraud  has  the  burden  of  proving  that  he 
purchased  in  good  faith,  and  payment  of  value.  Clemmons  v.  Brinn, 
36  Misc.  157,  72  N.  Y.  Sup.  1066;  California  Association  v.  Stelling,  141 
Calif.  713,  75  Pac.  320;  Hopkins  v.  Davis.  23  Ap.  Div.  235,  48  N.  Y.  Sup. 
745.  He  must  show  an  absence  of  knowledge  of  any  fact  which  would 
arouse  the  suspicions  of  a  reasonably  prudent  man.  Salisbury  r.  Barton, 
63  Kans.  552.  66  Pac.  618.  But  where  one  was  put  in  possession  of  goods 
with  authority  or  liberty  to  sell  them,  replevin  cannot  be  maintained 
against  one  who  holds  under  him,  without  proof  that  such  person  is  not 
a  bona  fide  purchaser,  Frischman  v.  Mandel,  26  Misc.  820;  56  N.  Y. 
Sup.  1029. 


318 


THE    LAW    OF    REPLEVIN. 


CHAPTER   XIII. 


THE    DEMAND. 


Section. 

General  principles  of  the  law 
requiring  it      ...         . 

Deniaiul  not  necessary  when 
defendant's  possession  is 
wrongful ;  otherwise  it  is 
necessary         .... 

Tlie  reason  for  the  rule 

The  same 

Proof  of  a  wrongful  taking  suf- 
ficient        

The  legal  effect  of  a  demand 
and  refusal 

"VVliere  possession  is  taken  by  a 
thief  or  trespasser  from  an- 
other thief  or  trespasser 

Wliere  goods  are  converted  no 
demand  necessary  ;  meaning 
of  the  term  "  conversion  "  as 
here    used 

Wliat  is  a  conversion 

There  can  be  no  conversion 
witliout  control  over,  or  inter- 
ference witli  the  property 

Illustrations  of  this  rule    . 

The  same    .... 

Purchaser  at  sheriff's  sale 

Possession  taken  simply  as  an 
act  of  charity,  or  to  preserve 
property,  not  conversion 

Borrower  cannot  set  up  title  in 
himself  as  against  his  bailor  358 

Finder  of  property  entitled  to  a 
demand 359 

The  taker-up  of  stray  animals  .  360 


344 


345 
346 

347 

348 
349 


350 


351 
352 


353 
354 
355 
356 


357 


Section. 

Purchaser  of  property  payable 
in  instalments  entitled  to  a 
demand  before  forfeiture       .  361 

Unauthorized  interference  with 
tlie  goods  of  another      .         .  363 

One  who  liires  property  for  a 
special  purpose  cannot  use  it 
for  another      ....  363 

Innocent  receiver  of  stolen  goods 
may  be  liable  for  conversion  364 

Wliat  is  riglitful  possession       .  365 

Fraudulent  purchaser,  or  attach- 
ing creditor  of  same,  not  en- 
titled to  demand     .         .         .  366 

A  fraudulent  taking  confers  no 
right  on  the  taker  .         .         .  367 

Demand  necessary  where  an  of- 
ficer seizes  goods  from  defend- 
ant named  in  liis  process        .  368 

Contra  ;  when  he  seizes  goods 
from  another  ....  369 

Innkeeper  or  carrier  ;  when  en- 
titled to  a  demand  .        .         .  370 

What  time  demand  must  be 
made 371 

The  effect  of  failure  to  prove 
demand 372 

Waiver  of  demand  by  defendant  373 

The  same.  Claim  of  ownership 
by  defendant  ....  374 

Upon  whom  the  demand  must 
be  made 375 

No  particular  form  necessary    .  376 

General  rules  governing  the  de- 
mand       •        .        .         ,        •  377 


THE    DEMAND.  319 


The  same.     Illustrations    .        .  378 
Demand  by  father  or  guardian  379 
Refusal  to  deliver  ;  true  grounds 
therefor  must  be  stated        .  380 


The  same.    "What  is  a  sufficient 
excuse  for  non-delivery  .        .  381 

The  same 382 

The  same 383 


§  344.  Demand  ;  general  principles  of  the  law  requiring- 
it.  There  are  many  ca.ses  wliere  it  is  necessary,  before  coniuienc- 
ing  suit,  to  make  a  demand  upon  the  defendant  for  the  delivery 
of  the  property,  and  tlie  question  Avhether  such  demand  is  neces- 
sary or  not  ought  always  to  be  fully  considered.  The  effect  of  a 
failure  to  make  and  prove  a  demand  in  cases  where  the  defendant 
is  entitled  to  it,  may  be  to  lose  an  otherwise  good  case.  The  fact 
that  the  defendant  has  the  possession  of  goods  raises  no  presump- 
tion that  he  came  wrongfully  by  them,  nor  does  it  raise  any  in- 
ference that  he  will  detain  them  against  the  owner's  demand.* 
The  primary  ol)ject  of  a  demand,  independent  of  the  legal  rights 
of  the  other  party,  is  to  obtain  the  goods  without  suit,  and  it 
should  be  made  in  all  cases  where  there  is  a  reasonable  belief  that 
it  will  result  in  a  delivery  of  the  goods,  with  few  probabilities 
that  their  pos.sessor  will  remove  or  secrete  them.  A  demand  is 
necessary  in  many  cases  to  afford  the  defendant  an  opportunity 
to  restore  the  goods  to  the  rightful  owner,  or  to  make  satisfaction 
if  he  desires  to  do  so.  In  all  cases  where  a  party  is  in  the  pos- 
session of  the  goods  of  another  the  law  jiresumes  that  he  will  at 
once  deliver  them  to  the  owner  on  request ;  and  this  presumption- 
is  so  strong  that  it  will  not  allow  such  possessor  to  be  put  to  the 
expen.se  of  defending  a  suit  until  the  opportunity  has  been  offered 
him  to  save  costs  and  avciid  litigation  by  a  sui-rcndcr.' 

§  345.  Demand  not  necessary  when  the  defendant's  pos- 
session is  wrongful  ;  otherwise  it  is  necessary.  The  geiural 
rule  may  i)C  staled  that  when  llic  defendant's  pos.session  has  bet'U 
acquired  through  force  or  fraud,  or  though  rightful  in  its  incep- 


'  Amos   V.  Sinnott,   4   Scam.   4U. 

'Thompson  r.  Shirley,  1  Esp.  N.  P.  C.  31;  Stanchflehl  v.  Palnior,  4 
Greene.  (Iowa),  24;  Homan  r.  I.aboo,  1  Nei).  208;  PriiiKle  r.  Phillips, 
5  San«lf.  (N.  Y.)  IfiT.  (The  koU-  purpose  of  the  demand  Is  to  terminate 
defendant's  right  of  posseHHion.  LamiJiiiK  «'.  Krenun.  'J  Colo.  3yo,  12 
Pac.  434;  that  costs  shall  not  Ix*  Incurred  unnecessarily,  Satterthwalte 
V.  ElllH.  129  N.  C.  67.  3G  S.  K.  727;  to  afford  defendant  opportunity 
to  surrender  the  ROodH  without  the  expense  or  annoyance  of  IKlKiitlon. 
Guthrie  v.  Oleson.  44  Minn.  404,  4G  N.  W.  8n3  | 


320  THE    LAW    OF    REPLEVIN. 

tion,  the  defendant  has  subsequently  done  any  act  amounting  to  a 
conversion  of  the  property  to  his  own  use,  or  intended  to  deprive 
the  rightful  owner  of  his  goods,  demand  is  not  necessary.*  But 
where  the  defendant's  possession  was  rightfully  acquired,  and 
Avhere  he  has  been  guilty  of  no  wrongful  act  towards  the  plain- 
tiff's rights,  a  demand  is  usually  necessary  before  suit  can  be  sus- 
tained.*    Thus,  where  the  defendant  a<(iuircs  possession  by  means 

'Bussing  V.  Rice,  2  Cush.  48;  Thurston  v.  Blanchard.  22  Pick.  18; 
Ayres  v.  Hewett.  19  Me.  281;  Foshay  v.  Ferguson.  5  Hill,  158;  Stillman 
V.  Squire,  1  Denio,  328;  Cummings  v.  Vorce,  3  Hill,  282;  Pierce  v.  Van- 
Dyke,  6  Hill,  613;  Trudo  v.  Anderson,  10  Mich.  358;  Ballou  v.  O'Brien, 
20  Mich.  304;  Le  Roy  v.  East  Sag.  R.  R.,  18  Mich.  239;  Clark  v.  Lewis, 
35  111.  417;  Bruner  v.  Dyball,  42  111.  36;  Gibbs  v.  Jones,  46  111.  320; 
Seaver  v.  Dingley,  4  Green.  (Me.)  314;  Griswold  v.  Boley,  1  Blake, 
(Montana),  546;  Hicks  v.  Britt,  21  Ark.  422;  Farrington  v.  Payne,  15 
Johns.  432;  White  v.  Brown,  5  Lans.  78;  Connah  v.  Hale,  23  Wend. 
462;  Bates  v.  Conkling,  10  Wend.  390;  Lewis  v.  Masters,  8  Blackf.  246; 
Delancey  v.  Holcomb,  26  Iowa.  96;  Smith  v.  McLean,  24  Iowa,  322; 
Stanchfield  v.  Palmer,  4  Greene,  (Iowa),  25;  Lawson  v.  Lay,  24  Ala. 
188;  Gardner  v.  Boothe,  31  Ala.  190;  Oleson  v.  Merrill,  20  Wis.  462; 
Whitney  v.  McConnell,  29  Mich.  13;  Gilmore  v.  Newton,  9  Allen,  171; 
Stanly  v.  Gaylord,  1  Cush.  549;  Riley  v.  Boston  Water  P.  Co.,  11  Cush. 
11;  Henry  v.  Fine,  23  Ark.  419;  Courtis  v.  Cane,  32  Vt.  232;  Boise  v. 
Knox,  10  Met.  41;  Fernald  v.  Chase,  37  Me.  292;  Parsons  v.  Webb,  8 
Me.  39;  Baldwin  v.  Cole,  6  Mod.  212;   Partridge  v.  Swazey,  46  Me.  414. 

*  Brown  v.  Cook,  9  Johns.  361;  Boughton  v.  Bruce,  20  Wend.  234; 
Pierce  v.  Van  Dyke,  6  Hill,  613;  Stanchfield  v.  Palmer,  4  Greene, 
(Iowa),  25;  Smith  v.  McLean,  24  Iowa,  323;  Gilchrist  v.  Moore,  7  Iowa, 
11;  Sluyter  v.  Williams,  1  Sweney,  (  N.  Y.)  215;  Stapleford  v.  White, 
1  Housto'n.  (Del.)  238;  Windsor  t'.  Boj'ce,  1  Houst.  (Del.)  605;  John- 
son V.  Johnson.  4  Har.  (Del.)  171;  Sopris  v.  Truax,  1  Colorado,  90; 
Roach  V.  Binder,  1  Colorado,  322;  Newman  v.  Jenne,  47  Me.  520;  Seaver 
V.  Dingley,  4  Green.  (Me.)  307;  Pirani  v.  Barden,  (5  Ark.)  Pike,  81; 
Burr  V.  Daugherty,  21  Ark.  564;  Hudson  v.  Maze,  3  Scam.  582;  Ingalls 
V.  Bulkley,  13  111.  317;  Smith  v.  Welch.  10  Wis.  91;  Stratton  v.  Allen, 
7  Mimi.  502;  Root  v.  Bonnema,  22  Wis.  539;  Walpole  v.  Smith,  4 
Blackf.  306;  Litterel  v.  St.  John,  lb.  327;  Conner  v.  Comstock,  17 
Harrison,  (Ind.)  90;  Bond  v.  Ward,  7  Mass.  127;  Sawyer  v.  Merrill,  6 
Pick.  478. 

Note  XXI.  In  What  Cases  Demand  is  Necessary. — Replevin  cannot 
be  maintained  against  mortgagee  in  possession  even  after  default  made, 
until  the  goods  are  demanded,  Cadwell  v.  Pray,  41  Mich.  307,  2  N.  W. 
52;  Roberts  v.  Norris,  67  Ind.  386;  Moore  v.  Ray.  108  N.  C.  252,  12  S.  E. 
1035. 

And  sales  by  the  mortgageor,  where  this  is  contemplated  by  the  mort- 
gage, or  even  a  general  sale  by  the  mortgageor  of  his  interest,  affords  no 


THE    DEMAND.  321 

t)f  a  lease  from  the  owner,  he  is  entitled  to  a  demand  before  being 
subjected  to  a  suit.     Ordinaril}'  this  is  the  case  after  the  lease 
has  expired.^     But  a  servant  who  quits  his  master,  taking  with 
'White  V.  Brown.  5  Lans.   (N.  Y.)   78. 

ground  to  assert  a  wrongful  detention  in  the  absence  of  demand,  Cad- 
well  V.  Pray,  supra. 

An  officer  who  levies  upon  mortgaged  goods,  while  in  possession  of 
the  mortgageor,  is  not  liable  in  replevin  until  demand  made,  Keller  v. 
Robinson,  153  Ills.  458,  38  N.  E.  1072;  Schemerhorn  v.  Mitchell.  15 
Ills.  Ap.  418;  Holliday  v.  Bartholomae.  11  Ills.  Ap.  206;  Gilbert  v. 
Murray,  69  Ills.  Ap.  664; — so  in  any  case  where  the  officer  levies  upon 
goods  found  in  possession  of  defendant  named  in  his  writ.  Stone  v. 
O'Brien,  7  Colo.  458,  4  Pac.  792.  Purchaser  in  a  conditional  sale,  can- 
not even  after  default,  be  made  liable  in  replevin  without  a  demand, 
Kimball  r.  Farnum.  61  N.  H.  348:  Heinrich  r.  Van  Wiickler,  80  Ap. 
Div.  250,  80  N.  Y.  Sup.  226;  Wheeler,  etc.,  Co.  v.  Teetzlaff,  53  Wis.  211. 
10  N.  W.  155;  Adams  r.  Wood,  51  Mich.  411,  16  N.  W.  788.  But  see 
Contra  Norman  Co.  v.  Ford,  77  Conn.  461,  59  Atl.  499;  Proctor  v.  Tilton, 
65  N.  H.  3,  17  Atl.  638. 

Nor  can  purchaser  from  the  vendee  in  a  conditional  sale,  without 
notice  of  the  infirmities  in  his  vendor's  title,  Torian  i'.  McClure.  83 
Ind.  310; — nor,  it  seems,  even  though  he  has  notice  of  the  condition, 
Payne  v.  June,  92  Ind.  252.  Nor  one  who  comes  into  possession  of 
goods  pursuant  to  a  sale  contemplated  but  not  consummated.  Darling  v. 
Tegler,  30  Mich.  53.  Nor  a  bona  fide  purchaser  of  goods  tortiously 
taken,  Gillet  v.  Roberts,  57  N.  Y.  28;  Wood  v.  Cohen,  6  Ind.  455.  Nor 
a  hona  fide  purchaser  from  one  who  has  procured  goods  by  fraudu- 
lent misrepresentation,  Wolff  r.  Zeller,  27  Misc.  646.  5*8  N.  Y.  Sup.  608. 
Nor  bailee  at  the  suit  of  a  purchaser  from  his  bailor,  Wilson  v.  Cook. 
3  E.  D.  Sm.  252.  Nor  mortgagee  in  i)ossession  under  a  mortgage  which 
the  mortgageor  asserts  to  have  been  executed  while  he  was  nun  compos. 
Fay  V.  Burditt,  81  Ind.  433.  42  Am.  Rei).  142.  Nor  a  carrier  who  haa 
received  goods  for  transportation,  even  though  he  has  delayed  in  i)er- 
forming  his  duty,  Wabash  Co.  v.  House,  101  Ills.  A]).  397.  Nor  any 
one  in  lawful  possession,  Harris  v.  McCasland,  29  Ills.  Ap.  430;  Hall 
V.  Bassler.  96  Ap.  DIv.  96.  88  N.  Y.  Sup.  1039.  Even  though  the 
party  In  possession  has.  without  authority,  temporarily  loaned  the 
thing  to  another,  not  asserting  ownershlj),  Becker  v.  Vandercook,  54 
Mich.  114,  19  N.  W.  771.  Nor  In  any  case  where  the  plaintiff's  ri^;ht 
to  pOKsesslon  doix-nds,  by  express  words,  upon  a  prior  deniatnl,  Mowinan 
V.  Roberts,  58  Miss.  IIIG.  Nor  where  the  defendant's  ;  jHses.sion  and 
use  of  the  plaintiff's  property  was  originally  tortious,  but  plaintiff 
by  accepting  coinpenHatlon  for  the  use  at  the  regular  and  cuKtoinary 
rate,  haH  waived  the  tort,  Toledo.  et<.,  Co.  i'.  The  American  Co.,  41  Ills. 
Ap.  C25.  And  defendant  cannot  be  charged  In  replevin  where  he  camo 
lawfully  Into  jioKKeHKlon  and  Ih  entitled  to  retain  the  goods  until  de- 
mand, Woodward  v.  EdmundH,  20  I'tali,  118,  57  I'ac.  848. 
21 


322  THE    LAW    OF    REPLEVIN. 

him  his  master's  goods,  is  liable  without  demand.*  And  where  a 
machine  was  delivered  to  one  through  mistake  of  an  expressman, 
and  he  encouraged  the  delivery  and  afterwards  made  repairs  upon 
it,  the  taking  was  wrongful  and  no  demand  was  necessary.'  Or 
where  one  acquire  possession  of  property,  and  without  legal  right 
assert  a  claim  inconsistent  with  the  owner's  right.s,  the  possession 
from  that  moment  is  wrongful,  and  no  demand  is  necessary.* 

"  Pilsbury  v.  Webb,  33  Barb.  214. 
■Purvis  V.  Moltz,  5  Robts.   (N.  Y.)   653. 
'Shoemaker  v.  Simpson,  16  Kan.  43. 

Note  XXIL  In  What  Cases  Demand  not  Necessary. — No  demand  is 
required  where  the  possession  was  obtained  by  force  or  fraud,  Yeager 
V.  Wallace,  57  Pa.  St.  365;  California,  etc.,  Assn.  v.  Stelling,  141  Calif. 
713,  75  Pac.  320.  Nor  in  any  case  where  the  defendant  obtained  the 
possession  wrongfully,  Lewis  v.  Masters,  8  Blf.  244;  Deeter  v.  Sel- 
lers, 102  Ind.  458,  1  N.  E.  854;  Perkins  v.  Best,  94  Wis.  168,  68  N. 
W.  762;  Cottrell  v.  Carter,  173  Mass.  155,  53  N.  E.  375;  Schwamb  Co.  v. 
Schaar,  94  Ills.  Ap.  544; — as  where  an  officer  levies  on  mortgaged  goods 
in  defiance  of  the  right  of  the  mortgagee,  Merrill  v.  Denton,  73  Mich.  628, 
41  N.  W.  823;  Ashcroft  v.  Simmons,  159  Mass.  203,  34  N.  E.  188;  Green- 
berg  V.  Stevens,  212  Ills.  606,  72  N.  E.  722;  nor  where  purchaser  on 
condition  has  not  complied  with  the  terms  of  his  purchase,  Proctor  v. 
Tilton,  65  N.  H.  3,  17  Atl.  638,  Stockwell  v.  Robinson,  9  Houst.  313, 
32  Atl.  528;  Norman  Co.  v.  Ford,  77  Conn.  461,  59  Atl.  499;  or  the 
goods  are  levied  upon  in  possession  of  one  not  named  in  the  e.xecution, 
Stone  V.  O'Brien,  7  Colo.  458,  4  Pac.  792;  Burgwald  v.  Donelsen,  2  Kans. 
Ap.  301,  43  Pac.  100;  Forbes  v.  Martin,  7  Houst.  375,  32  Atl.  327;  — 
even  although  the  officer  acts  in  good  faith;  if  the  levy  is  unlawful  as 
to  the  plaintiff  he  is  under  no  duty  to  make  a  demand,  Hopkins  v. 
Bishop,  91  Mich.  328,  51  N.  W.  902;  Chandler  v.  Colcord,  1  Okla.  260, 
32  Pac.  330.  Nor  is  a  demand  necessary  where  the  officer  seizes  the 
goods  under  a  writ  issued  upon  a'  void  affidavit,  Aspell  v.  Hosbein,  98 
Mich.  117,  57  N.  W.  27;  nor  where  the  goods  were  seized  for  a  tax 
for  which  they  are  not  liable,  Coie  v.  Carl,  82  Hun,  3G0,  31  N.  Y.  Sup. 
565;  nor  where  the  defendant  took  possession  by  force,  denying  the 
owner's  right,  Hyland  v.  Bohn  Co.,  92  Wis.  157,  65  N.  W.  170;— or  the 
defendant  wrongfully  took  up  and  impounded  cattle  grazing  on  the 
highway  in  front  of  his  premises,  to  his  great  annoyance,  Bertwhistle 
V.  Goodrich,  53  Mich.  457,  19  N.  W.  143;  nor  where  the  defendant 
obtained  plaintiff's  goods  by  replevying  them  from  a  stranger,  Kelleher 
V.  Clark,  135  Mass.  45;  or  under  execution  sale  against  a  third  person, 
Edmunds  v.  Hill,  133  Mass.  445; — nor  where  a  trespasser  wrongfully 
attached  plaintiff's  rails  to  defendant's  land,  and  defendant  severed 
them  and  laid  claim  to  them,  Shoemaker  v.  Simi)son,  16  Kans.  43; 
nor  where  one  seizes  possession  of  logs  claiming  them  under  a  stranger, 
X.og-Owners  Co.  v.  Hubbell,  135  Mich.  65,  97  N.  W.  157;  nor  where  de- 


THE    DEMAND.  323 

§  346.  The  reasons  for  the  rule.  The  reasons  for  this  gen- 
eral rule  are  plain.  If  tlie  original  taking  was  lawful,  then  the 
possession  under  that  taking  must  be  rightful  until  some  other 
person  with  a  better  right  has  asserted  his  claim  by  asking  that 
the  goods  be  delivered  to  hi  in.  The  law  presumes  that  the  de- 
fendant who  riglitfuUy  acquired  possession  will  respect  the  rights 
of  the  true  owner  on  being  informed  of  them,  and  deliver  the  pos- 
session at  once  on  request.     At  least  he  must  have  an  opportunity 

fendant  obtained  possession  from  a  thief  or  mere  trespasser,  Eldred  r. 
Oconto  Co.,  33  Wis.  133;  Adams  v.  Wood,  51  Mich.  411.  16  N.  W.  788; 
Rosum  V.  Hodges,  1  S.  D.  308.  47  N.  W.  140,  9  L.  A.  R.  817;  even  though 
the  defendant  received  the  goods  in  ignorance  of  the  previous  theft  or 
wrong  and  acted  in  good  faith,  Harpending  v.  Meyer,  55  Calif.  555;  nor 
where  vendee  under  a  contract  of  sale  procures  delivery  by  fraud  with- 
out payment  of  the  price,  Schroeppel  v.  Corning,  6  N.  Y.  107;  Oswego 
Co.  r.  Lendrum,  57  la.  573,  10  N.  W.  900;  nor  where  the  goods  are 
obtained  by  fraud  without  intention  to  pay  for  them,  Carl  v.  McGonigal, 
58  Mich.  567,  25  N.  W.  516;  Reeder  v.  IMoore,  95  Mich.  594,  55  N.  W.  43G; 
Farwell  r.  Hanchett,  120  Ills.  573,  11  N.  E.  875;  nor  where  the  defend- 
ant has  converted  or  sold  the  goods,  Howitt  v.  Estelle,  92  Ills.  219;  Brein- 
tenwischer  v.  Clough,  111  Mich.  6,  G9  N.  W.  88;  Cox  v.  Albert,  78  Ind.  241; 
nor  where  the  defendant  has  put  the  goods  out  of  his  possession,  Torres 
V.  Rogers,  28  Misc.  176,  58  N.  Y.  Sup.  1104; — nor  where  the  defendant  re- 
ceived the  goods  from  a  trespasser,  Milligan  v.  Brooklyn  Co.,  68  N.  Y. 
Sup.  744;  or  received  the  goods  from  one  who  obtained  them  from  the 
owner  by  fraudulent  misrepresentation,  Farley  v.  Lincoln,  51  N.  H.  577; 
Tallraan  v.  Turck,  26  Barb.  167;  or  from  one  who  had  no  title,  nor  any 
right  to  dispose  of  the  goods,  Prime  v.  Cobb,  63  Me.  200;  Surles  r. 
Sweeney.  11  Ore.  21.  4  Pac.  469;  even  though  the  defendant  received 
possession  as  an  assignee  in  insolvency  and  was  not  intending  any 
wrong  or  conscious  that  he  was  committing  one,  Farley  v.  Lincoln. 
supra;  the  good  faith  of  the  defendant's  action  is  immaterial,  Schwamb 
Co.  V.  Schaar,  94  Ills.  Ap.  544;  nor  where  a  warehouseman,  being  in- 
terrogated about  the  goods,  refuses  to  give  the  information  deslren. 
and  refuses  an  examination  of  his  books,  Milligan  v.  Brooklyn  Co, 
supra;  nor  where  the  defendant  asserts  title  to  the  goods  and  diMilt-s 
the  right  of  the  plaintiff.  Howard  v.  Braun.  14  S.  U.  579,  80  N.  W.  635; 
Newell  t'.  Newell,  34  Miss.  385;  Heath  v.  Morgan,  117  N.  C.  504.  23 
S.  E.  489;  Hayes  Woolen  Co.  v.  McKlnnon,  114  N.  C.  661.  19  S.  E.  761; 
Chapln  t'.  Jenkins,  50  Kans.  385.  31  Pac.  1084;  Barton  i'.  Mulvane,  59 
Kans.  313.  52  Pac.  883;  Kellogg  v.  Olson.  34  Minn.  105,  24  N.  W.  364; 
Seattle  National  Bank  v.  Moerwaldt.  8  Wash.  630.  36  Puc.  763;  Latta 
r.  Tutton.  122  Calif.  279.  54  Pac.  844;  Leek  v.  Chesloy.  9S  la.  593.  67 
N.  W.  580;  Tllden  r.  Stllson,  49  Neb.  382.  68  N.  W.  478;  ORden  v. 
Warren.  36  Neb.  715.  55  N.  W.  221;  Bennett  v.  Tuni,  24  Mont.  457,  62 
Pac.  780;   Lewis  v.  Smart    t:?   m..    jdt;     Herman  v.  Knelp    •'''"  N"*''    20S. 


324  THE    I.AW    OF    REPLEVIN. 

to  do  SO  before  he  is  put  to  cost  of  a  suit.  If,  however,  he  refuses 
to  coinpl_y  Avith  the  demand,  or  if,  after  knowledge  of  the  plain- 
titf's  light,  he  does  any  act  which  amounts  to  a  conversion  of  the 
l)roperty  to  his  own  use,  his  possession  from  that  moment  be- 
comes wrongful  as  against  the  true  owner."  Again,  where  the  de- 
fendant's possession  was  riglitfnlly  ac(piired,  his  sul)sc(iuent  pos- 
session continues  to  be  rightful  until  he  shall  have  done  some  act 
inconsistent  with  the  owner's  rights  ;  and  while  his  possession  so 
continues  to  be  rightful  no  action  which  requires  for  its  support 
°  Pringle  v.  Phillips,  5  Sandf.  (N.  Y.)  161;  Woodward  v.  Woodward, 
14  111.  466;  Poole  v.  Adkisson,  1  Dana,  (Ky.)  110;  Hosmer  v.  Clarke, 
2  Green.  (Me.)  308. 

80  N.  W.  816;  but  a  mere  denial  of  plaintiff's  right  to  the  possession 
does  not  waive  a  demand,  Peters  v.  Parsons,  18  Neb.  191,  24  N.  W. 
687;  nor  is  a  demand  necessary  where  conversion  can  be  shown  other- 
wise than  by  demand,  as  where  defendant  asserted  title  to  an  animal, 
as  won  in  a  wager  with  a  son  of  the  plaintiff,  who  was  a  mere  bailee 
in  possession.  Brown  v.  Beason,  24  Ala.  436;  or  where  the  defendant 
averred  that  if  plaintiff  meddled  with  the  goods  he  "  would  break  every 
bone  in  his  body,"  University  v.  State  Bank,  96  N.  C  280,  3  S.  E.  359; 
nor  -vhere  one  to  whom  bonds  have  been  unlawfully  delivered  in  pledge 
by  one  without  authority,  announces  a  purpose  to  retain  them  never- 
theless. University  v.  State  Bank,  supra;  nor  where  defendant  re- 
ceived the  goods,  under  a  contract  void  as  against  public  policy,  Sellers 
V.  Catron,  Ind.  T.  82  S.  W.  742. 

Nor  is  demand  necessary  where  it  appears  that  it  would  have  been 
unavailing,  California,  etc..  Association  v.  Stelling,  141  Calif.  713,  75 
Pac.  320;  Wood  v.  McDonald,  66  Calif.  546,  6  Pac.  452;  Richey  v.  Ford, 
84  Ills.  Ap.  121;  Kidd  v.  Johnson,  49  Mo.  Ap.  486;  and  a  refusal  to 
deliver  upon  demand  made  after  issuance  of  the  writ,  is  convincing 
proof  that,  even  if  seasonably  made,  it  would  have  been  unavailing, 
Rodgers  v.  Graham,  36  Neb.  730,  55  N.  W.  243.  Nor  is  demand  necessary 
where  the  defendant  gives  bond  and  retains  the  goods,  Miller  v.  Adam- 
son,  45  Minn.  99,  47  N.  W.  452;  nor  where  the  defendant  by  his  answer 
asserts  title  to  the  goods,  Flynn  v.  Jordan,  17  Neb.  518,  23  N.  W.  519; 
Guthrie  v.  Olson,  44  Minn.  404,  46  N.  W.  853;  Fuller  v.  Torson,  8 
Kans.  Ap.  652,  56  Pac.  512;  nor  where  on  the  trial,  the  defendant 
contests  the  plaintiff's  right,  Hennessey  v.  Barnett,  12  Colo.  Ap.  254, 
55  Pac.  197;  Thompson  v.  Thompson,  11  N.  D.  208,  91  N.  W.  44;  State 
Bank  v.  Norduff,  2  Kans.  Ap.  55,  43  Pac.  312;  Myrick  v.  Bill,  3  Dak. 
284,  17  N.  W.  2G8;  Lamping  v.  Keenan,  9  Colo.  390,  12  Pac.  434;  Webster 
V.  Brunswick  Co.,  37  Fla.  433,  20  So.  536;  Jordan  v.  Johnson,  1  Kans. 
Ap.  656,  42  Pac.  415;  George  v.  Hewlett,  70 'Miss.  1,  12  So.  855;  nor 
is  a  demand  necessary  where  the  defendant  secretes  himself  or  leaves 
the  jurisdiction  to  avoid  a  demand,  Wall  v.  De  Mitkiewicz,  9  Ap.  D.  C. 
109. 


THE    DEMAND.  325 

proof  of  a  wrongful  detention,  can  lie ;  so  when  a  demand  is  re- 
quired the  defendant's  possession  continues  to  be  rightful  up  to 
the  time  of  demand,  and  until  he  can  have  a  reasonable  opportun- 
ity to  comply  with  it.  Therefore,  when  a  demand  is  necessary, 
it  must  be  made  before  the  suit  is  begun.'" 

§  347.  The  same.  So  careful  is  the  law  of  the  rights  of  in- 
nocent holders,  that  in  many  cases  it  will  not  permit  the  owner 
to  recover  his  property  even  when  wrongfully  taken  from  him, 
until  after  he  shall  have  made  demand  for  it.  Thus,  when  the 
owner  of  a  chattel  wrongfully  taken  from  him  finds  it  in  the  pos- 
session of  one  who  acquired  it  in  good  faith,  by  purchase,  and  in 
ignorance  of  the  owner's  right,  a  demand  is  necessary  before 
bringing  the  action."  But  this  rule  does  not  apply  to  stolen 
goods,  nor  can  it  be  said  to  be  the  law  in  all  the  States. '- 

§348.  Proof  of  a  wrongful  taking  sufficient.  While  the 
foregoing  is  perhaps  accurate  as  a  general  statement,  yet  the  de- 
cisions vary  so  widely  in  the  different  States,  that  statement  of 
a  rule  applicable  to  all  cases  is  impossible.  General  principles, 
however,  can  be  stated,  which  it  is  hoped  will  be  a  suflficient 
guide.  The  difference  between  the  action  for  the  wrongful  tak- 
ing, i.  e.  in  the  cepit,  and  for  the  wrongful  detention,  r.  e.  in  the 
detinet,  has  been  stated."  When  the  action  is  for  a  wrongful  tak- 
ing, proof  of  an  actual  or  constructive  wrongful  taking  by  the 
defendant  will  be  sufficient,  withput  proof  of  a  demand.  Tliis 
rule  al.so  holds  when  the  form  of  the  action  is  for  the  detention. 
The  plaintiff  may,  if  he  so  elect,  sue  in  the  latter  form  of  action, 
when  his  goods  have  been  wrested  from  him,  and  may  sustain 
his  action  witliout  proof  of  a  demand,  proof  of  the  wrongful  tak- 
ing being  sufficient,"  as  the  law   will    presume   from   proof  of  a 

"Brown  r.  Holmes,  13  Kan.  482;  Windsor  r.  Boyce,  1  Houst.  (Del.) 
605;   Alden  v.  Carver.  13  Iowa,  255. 

"  SUnchfleld  v.  Palmer.  4  Gr.  (Iowa,)  24;  Wood  v.  Cohen,  G  Ind.  455; 
IngallB  V.  Bulkley,  13  111.  315. 

"Compare  Lewis  v.  Masters.  Blackf.  245;  Riley  v.  Boston  Water  P. 
Co..  11  CuHh.  11;  Courtis  r.  Cane,  32  Vt.  232;  Hardinj?  v.  Coburn.  12 
Met  342;  Hoare  i'.  Parker,  2  T.  R.  376;  Hudson  v.  Maze,  3  Sram.  582; 
Kelsey  r.  Griswoid,  6  Harb.  440;   Hall  v.  Robinson,  2  Comst.  (.N.  Y.)  295. 

"  See  ante,  i  53. 

"Stillman  r.  Squire,  1  Df-nlo.  328;  Oleson  r.  M«Trlll,  2o  Wis.  426; 
CummlnKH  v.  Vorce.  3  Hill.  282;  I^wIb  v.  Masters.  8  Mlackf.  245;  Pierce 
V.  Van  Dyke,  6  Hill,  613;  Zachrissan  v.  Ahraan,  2  Sandf.  68;  PrinKle  i'. 
PhllMpB.  5  Sandf.  157. 


326  THE    LAW    OF    Ky-:PLEVIN. 

"Wrongful  talcing,  that  the  goods  coiituiue  in  the  taker's  posses- 
sion, and  that  he  remains  of  the  san)e  purpose  of  mind  in  which 
he  conunittcd  the  wrong."'"  Hut  sueh  proof  is  not  admissible  foi- 
the  purpose  of  att'ecting  the  (juestion  o(  damages."' 

§349.  The  legal  effect  of  a  demand  and  refusal.  A  de- 
mand and  refusal  is  not  a  conversion,  nor  does  it  i)roduce  a  con- 
version." The  refusal  is  interpreted  hy  the  law  as  a  declaration 
on  the  part  of  the  person  refusing,  that  he  intends  to  make  use 
of  the  property  for  his  own  henetit,  and  for  this  the  law  will  hold 
him  responsible  as  for  an  actual  conversion.  Proof  of  an  actual 
conversion  will  always  obviate  the  necessity  of  proving  a  demand 
and  refusal.'"  When,  therefore,  the  defendant  has  notice  of  the 
plaintiff's  rights,  any  act  done  for  the  purpose  of  defeating  them, 
will  amount  to  a  conversion ;  but  where  the  defendant  acts  in 
ignorance  of  the  claim  of  any  other  person  and  in  the  honest 
belief  that  the  goods  are  his,  an  actual  conversion,  or  a  demand 
and  refusal  must  be  proved  before  the  plaintiff  can  sustain  an 
action.  Keiuiet  v.  Robinson,  3  J.  J.  Marsh,  (Ky.)  84,  is  one  of 
the  most  interesting  cases  on  the  question  of  "  what  is  a  conver- 
sion," that  is  to  be  met  with.  The  court  there  holds  in  substance, 
that  to  constitute  conversion  there  must  be  a  taking  without  the 
owner's  consent,  or  an  assumption  of  ownership,  or  an  illegal  use 
or  abuse  of  the  property,  and  that  in  the  absence  of  such  proof, 
there  must  be  proof  of  a  demand  and  refusal  to  deliver. 


"Paul  V.  Luttrell.  1  Colo.  320. 

"Eldred  v.  The  Oconto  Co.,  30  Wis.  20G. 

"Morris  v.  Pugh,  3  Burr.  1241;  Savage  v.  Perkins,  11  How.  Pr.  17; 
Perkins  v.  Barnes,  3  Nev.  557;  Bruner  v.  Dyball,  42  HI.  35;  Lockwood 
V.  Bull,  1  Cow.  322;  Hill  v.  Covell,  1  Comst.  (N.  Y.)  523;  Jessop  v. 
Miller,  1  Keyes,  (N.  Y.)  321.  Contra.  Baldwin  v.  Cole,  6  Mod.  212. 
Daggett  V.  Davis,  53  Mich.  35,  18  N.  W.  548;  Boyle  v.  Roach,  2  E.  D.  Sm. 
335.  And  the  allegation  of  a  demand  and  refusal  is  not  an  allegation 
of  conversion  and  does  not  transform  the  count  into  a  count  in  trover, 
Balch  V.  Jones,  61  Calif,  234. 

A  demand  and  refusal  is  evidence  of  conversion,  but  not  the  only 
evidence,  Bellknap  Bank  v.  Robinson,  66  Conn.  542,  34  Atl.  495;  Daggett 
V.  Davis,  53  Mich.  35,  18  N.  W.  548.  A  demand  in  violation  of  an  injunc- 
tion cannot  be  made  the  basis  of  an  action,  Smith  v.  Smith,  52  Mich. 
539,  18  N.  W.  347.  The  action  is  deemed  to  be  commenced  at  the  date 
of  the  demand,  Dow  v.  Dempsey,  21  Wash.  86,  57  Pac.  355. 

'•^  Bristol  V.  Burt,  7  Johns.  257;  Gilmore  v.  Newton,  9  Allen,  (Mass.) 
171. 


THE    DEMAND.  327 

§  350.  Where  possession  is  taken  by  a  thief  or  tres- 
passer from  another  thief  or  trespasser.  If  goods  be  tnkeii 
by  a  thief  or  trespasser  from  another  thief  or  trespasser,  the 
owner  may  have  trespass  or  replevin  against  the  hist  tiiker  with- 
out demand." 

§  351.  Where  goods  are  converted  no  demand  neces- 
sary ;  meaning  of  the  term  "  conversion "  as  here  used. 
The  term  "  conversion  "  as  here  used  does  not  imply  a  change  of 
condition  in  the  goods,  but  simply  that  they  have  been  appropri- 
ated by  the  party  to  his  own  use.  If  one  take  corn  and  refuse  to 
deliver  it  to  the  owner  on  demand,  it  is  a  conversion.  If  he  man- 
ufacture whi.sky  from  it  and  deliver  it  on  request,  it  is  no  eon- 
version.  Proof  of  a  refusal  simply  raises  a  legal  presumption 
that  the  defendant  has  converted  the  property. 

§  352.  What  is  a  conversion.  The  question  then  presents 
itself,  what  jn-oof,  aside  from  a  demand,  will  be  sufheient  to  con- 
vict the  defendant  of  a  conversion  ?  As  a  general  rule,  to  render 
the  defendant  guilty  of  conversion,  he  must  have  done  some  posi- 
tive tortious  act.  Negligence,  or  a  mere  omission,  is  not  usually 
suflBcient.*"  AVhen  a  carrier  loses  a  box  entrusted  to  him,  such 
loss,  however  negligent,  does  not  amount  to  a  conversion.^'     But 

"Barrett  v.  Warijen,  3  Hill,  (N.  Y.)  348. 

»  Jones  V.  Allen,  1  Head.  (Tenn.)  628;  Lockwood  v.  Bull,  1  Cow.  322. 
Consult  Gilmore  v.  Newton,  9  Allen,  171,  and  cases  cited;  Youl  v. 
Harbottie.  Peakes  N.  P.  Cas.  49;  Presley  v.  Powers,  82  111.  125.  [Magnin 
r.  Dinsmore,  70  N.  Y.  410.  Tenant's  refusal  to  clean  and  divide  the 
grain  raised  upon  shares,  as  required  by  the  lease,  is  not  a  conversion 
of  the  landlord's  moiety,  Thomas  i'.  Williams,  32  Hun,  257.] 

='  Packard  v.  Getman,  4  Wend.  615;  Ross  v.  Johnson,  5  Burr.  2827; 
Kirkham  r.  Hargraves,  1  Selw.  N.  P.  425;  Dwight  v.  Brewster,  1  Pick. 
50,  53.  [Magnin  v.  Dinsmore,  70  N.  Y.  410;  a  carrier  is  not  chargeable 
with  a  conversion  where  the  goods  have  been  attached  in  his  hands 
upon  process  against  a  third  jjerson,  Stiles  v.  Davis.  1  Black,  101,  17 
L.  Ed.  33.  But  the  carrier  is  guilty  of  a  conversion,  when,  on  demand 
and  offer  to  pay  his  proper  charge,  ho  refuses  and  makes  an  exorbitant 
charge;  the  goods  are  thereafter  at  his  risk.  Northern  Co.  v.  Sellick,  52 
Ills.  249.  Carrier  is  liable  If  he  or  his  servant  i)Ut8  water  into  wine 
delivered  to  him  for  carriage,  Dench  v.  Walker,  14  Mass.  500. 

The  casual  loss  of  a  bill  of  exchange  Is  not  a  conversion.  Salt 
Springs  Bank  v.  Wheeler.  48  N.  Y.  492.  A  creditor  upon  whose  writ 
goods  are  attached.  Is  not  responsible  for  their  loss  by  the  negligence 
of  the  officer,  Jenner  r.  Jollffe,  6  Johns.  9.  Collector  of  the  port  |8 
liable,  If  he  detalnH  the  goodn  of  an  iiiipr)rler  on  prctcn<  e  of  a  lien  for 


328  THE    LAW    OF    REPLEVIN. 

under  ordinary  circumstances,  where  property  is  under  the  con- 
trol of  the  defendant,  a  willful  neglect  to  deliver  on  request,  or  to 
point  out  the  property  or  act  in  its  delivery,  will,  if  unexplained, 
amount  to  a  conversion  and  excuse  proof  of  a  demand."  One 
having  the  right  to  exclusive  possession  of  a  building,  in  which 
another's  goods  are  stored,  may  exclude  the  owner  of  the  goods 
from  the  building,  and  such  exclusion  will  not  necessarily  be  a 
conversion  of  the  goods  ;"  and  an  action  of  replevin  for  the  goods 
would  require  some  further  support  than  proof  of  a  refusal  to 
admit  into  the  building.-* 

§  358.  There  can  be  no  conversion  without  actual  con- 
trol over,  or  interference  with,  the  property.  There  can 
never  be  an  actual  conversion  of  property  without  an  actual  pos- 
session of  it,  or  the  exercise  of  some  control  or  dominion  over  it. 
A  mere  declaration  of  ownership  by  one  not  in  possession,  or  an 
assertion  of  intention  to  take  possession,  without  any  actual  inter- 
ference with  it,  will  not  amount  to  a  conversion."  A  levy  by  an 
ofiBcer  upon  goods  which  he  does  not  see,  or  in  anyway  interfere 
with,  is  no  conversion.^"  Neither  will  a  conspiracy,  however 
atrocious,  to  take  or  destroy  property,  confer  a  right  of  action, 
unless  some  act  to  the  injury  of  the  party  be  done  under  it." 

§  354.  Illustrations  of  this  rule.  When  plaintiff's  sheep 
broke  out  of  his  lot  and  mingled  with  those  of  defendant's,  which 

duties,  when  no  duties  are  in  fact  due,  or  the  duties  due  are  tendered; 
and  he  cannot  protect  himself  by  the  orders  of  his  superior  officer, 
Fiedler  v.  Maxwell,  2  Bl.  C.  C.  552.] 

"Mitchell  V.  Williams,  4  Hill,  (X.  Y.)  16;  Holbrook  v.  Wight,  24 
Wend.  169.  [Plaintiff's  animals  strayed  upon  defendant's  lands 
and  into  his  enclosure;  plaintiff's  servant  called  and  inquired  if 
they  were  there;  defendant  indicated  that  they  were  in  ihe  pasture,  but 
gave  no  license  to  take  them;  he  had  previously  forbidden  plaintiff  his 
premises;  held  guilty  of  a  conversion,  Kiefer  v.  Carrier,  53  Wis.  404,  10 
N.  W.  562.  The  purchase  of  mortgaged  chattels  by  a  third  person  and 
the  assumption  of  possession  thereof  is  a  conversion.  Woods  v.  Rose, 
135  Ala.  297,  33  So.  41.  So  of  any  unlawful  intermeddling  with  the 
goods  of  another  or  the  exercise  of  dominion  over  them.  Milner  Co.  v. 
De  Loach  Co.,  139  Ala.  645,  6  So.  765.] 

"Bent  V.  Bent,  44  Vt.  634. 

"Bent  V.  Bent,  44  Vt.  634. 

"Fernald  v.  Chase,  37  Me.  289;  Fuller  v.  Tabor,  39  Me.  521;  Simmons 
V.  Lettystone,  4  Exch.  442;  Rogers  v.  Huie,  2  Cal.  571;  Heald  v.  Cary^ 
11  Com.  B.  993;  Presley  v.  Powers,  82  HI.  125. 

"'  Herron  v.  Hughes,  25  Cal.  556. 

-•Hutchins  v.  Hutchins,  7  Hill,  (N.  Y.)   104. 


THE    DEMAND,  329 

"were  being  driven  along  tlie  highway,  although  the  latter  allowed 
them  to  go  with  his  sheep  to  his  lot,  where  they  were  separated 
and  driven  back  toward  the  direction  from  whence  they  came,  it 
was  held  no  conversion.-'  When  cattle  break  into  the  field  of  an- 
other, and  destroj'  corn,  it  cannot  be  said  that  their  owner  con- 
verted the  corn,  because  his  cattle  ate  it.**  "When  a  horse  was 
conveyed  as  security  for  a  debt,  the  debtor  to  retain  possession, 
castration  of  the  horse,  pending  the  time,  is  a  conversion,  and  the 
lender  may  retake  possession  in  replevin.'"  So,  when  a  horse  had 
been  leased  for  a  term,  upon  an  agreement  to  divide  the  profits 
of  his  services,  and  the  lessee  permitted  it  to  be  sold  on  execu- 
tion, held  a  conversion." 

§  355.  The  same.  It  is  not  every  taking  that  amounts  to  a 
conversion.  A  simple  taking,  without  any  intention  to  u.se  jirop- 
erty,  or  to  injure  or  damage  it,  or  delay  or  affect  its  owner's 
rights,  would  not  be  a  conversion."  A  tresjiass,  however  gross, 
is  not  necessarily  a  conversion.     Under  the  law,  generally,  in  this 

"Van  Valkenburgh  v.  Thayer,  57  Barb.  196.  [Plaintiff's  cow  unlaw- 
fully upon  the  highway,  got  into  defendant's  herd,  without  his  knowl- 
edge, and  was  driven  to  a  great  distance,  out  of  the  state,  and  grazed 
there  during  the  summer  season;  on  defendant's  return  he  brought 
the  animal  with  him  and  surrendered  her;  held  not  guilty  of  a  conver- 
sion, Wellington  v.  Wentworth,  8  Mete.  (Mass.)  548. 

Defendant,  purchasing  a  warehouse,  found  there  a  quantity  of  cotton 
and  was  told  by  the  former  occupant  that  it  belonged  to  A.;  having  no 
information  to  the  contrary  he  notified  A.  to  take  it  away  and  A.  com- 
plied with  this  direction;  held,  that  defendant  was  not  guilty  of  a  con- 
version, Parker  v.  Lombard,  100  Mass.  405.  Defendant  temporarily 
had  in  possession  a  wagon  of  the  plaintiff,  which  he  obtained  from  the 
keeper  of  a  livery  stable,  to  use  while  his  own  wagon  was  being  re- 
paired; he  had  no  knowledge  of  the  rights  of  the  plaintiff;  on  being 
Informed  that  the  plaintiff  claimed  the  wagon  he  returned  It  to  the  per- 
son from  whom  he  obtained  it;  held  not  guilty  of  a  conversion,  (but  the 
verdict  was  the  other  way,  why  is  not  apparent,  and  the  court  affirmed 
a  Judgment  for  the  plaintiff,)   Rembaugh  v.  I'hipps,  75  Mo.  422.] 

■Smith  V.  Archer,  5:{  111.  244. 

"Ripley  V.  Dolbier,  18  Me.  382. 

"Hutchinson  v.  liolio.  1  Bailey.  (S.  C.)   54G. 

"Eldrldge  v.  Adams,  54  Barb.  417.  [If,  after  the  converBlon,  the 
partlPH  agree  upon  an  adjUHtment,  and  the  defendant  in  posHcsslon  of 
the  goodH  remalnH  alwayn  ready  and  willing  to  keep  his  agreenent. 
Huch  de(«'ntlon  Ih  not  conviMHlon.  Lander  r.  Bfchlcll,  55  WIh.  593,  13  .\. 
W.  AH'.',,  Ko  If  th<'  finder  of  goodH  lay  them  by  for  the  tru«<  owniT  until 
he  can  n-anonably  HatlHfy  hlniHcIf  of  the  man.  Molbrook  i'.  Wright.  2\ 
^end.  169. J 


330  THE    LAW    OF    REPLEVIN. 

country,  a  taking,  unaccompanied  V)y  a  detention,  is  not  a  conver- 
sion.^^ I'Uiintitl;"  paid  the  fare  for  liiniself  and  two  horses  on  a 
ferryboat;  the  ferryman  told  him  to  remove  his  liorses  he  would 
not  carry  them.  Plaintiff  refused ;  thereupon  the  ferryman  re- 
moved them,  while  plaintitf  remained,  and  was  carried  over. 
Hdd^  that  it  was  not  conversion,  unless  the  taking  was  with  the 
intent  to  convert  to  the  taker's  use.  Trespass  might  lie,  but  not 
trover  or  replevin.-"  A  neglect  or  refusal  to  deliver  goods  which 
are  not  in  the  defendant's  possession  at  the  time  of  the  demand 
is  not  a  conversion.'^ 

"Bogan  V.  Stoutenburgh,  7  Ohio,  Pt.  2,  213;  State  v.  Jennings,  14 
Ohio  St.  77;  Paul  v.  Luttrell,  1  Col.  317;  Nelson  v.  Iverson,  17  Ala.  219. 

"Fouldes  V.  Willoughby,  8  Mees.  &  W.  540;  Eldridge  v.  Adams,  54 
Barb.  417.  [Defendant  refused  to  permit  his  employees  to  rent  of  the 
plaintiff  a  certain  dwelling  situate  entirely  on  the  island  owned  by 
defendant  and  for  which  no  other  tenants  could  possibly  be  secured; 
held,  not  a  conversion,  Heywood  v.  Tillson,  75  Me.  225,  46  Am.  Rep. 
373.] 

»*  Whitney  v.  Slauson,  30  Barb.  276;  Hawkins  v.  Hoffman,  6  Hill,  586; 
Hall  V.  Robinson,  2  Comst.  (N.  Y.)  293;  Hill  v.  Covell.  1  Comst.  522; 
Walker  v.  Fenner,  20  Ala.  198.  [Neither  is  the  retention  of  the  prop- 
erty by  the  bailee,  when  demanded  by  a  third  person,  where  his  mere 
purpose  is  to  ascertain  the  right,  Philpott  v.  Kelly,  3  Ad.  &  E.  106.  So 
where  the  owner  upon  whose  premises  timbers  were  found,  told  the 
party  demanding  them  he  should  have  them  if  he  would  bring  anyone 
to  prove  his  property,  Holbrook  v.  Wright,  24  Wend.  169;  and  where 
a  mere  servant  in  charge  of  a  warehouse  refuses  to  deliver  goods  without 
an  order  from  his  master.  Id.  An  agent  is  not  bound  to  deliver  up  the 
goods  which  he  has  received  from  his  principal;  and  to  refuse  upon 
tnis  ground  is  not  a  conversion,  Gary  v.  Bright,  58  Pa.  St.  70.  A  broker 
buying  shares  of  corporate  stock  in  his  own  name  for  account  of  an- 
other is  not  bound  to  deliver  any  particular  shares;  so  that  he  deliver 
on  demand  the  number  of  shares  for  which  he  is  accountable,  in  the 
same  stock,  his  contract  is  performed,  Boylan  v.  Huguet,  8  Nev.  345. 
The  wrongful  use  of  the  certificate  is  a  conversion  of  the  stock,  Kuhn 
r.  McAllister,  1  Utah,  273;  S.  C.  96  U.  S.  87,  24  L.  Ed.  615.  And  an  aver- 
ment that  the  defendant  "  wrongfully  took  and  converted,"  etc..  admits 
evidence  of  the  conversion  without  any  averment  of  the  particular  man- 
ner in  which  it  was  accomplished,  Id. 

Plaintiff  delivered  two  promissory  notes  to  K.  for  discount  for 
plaintiff's  use;  K.  delivered  them  to  defendant  in  exchange  for  de- 
fendant's check,  and  discounted  this  check  with  C.  D.  &  Co.,  depositing 
the  notes  as  collateral  security;  the  check  was  dishonored,  and  K.  de- 
manded payment  of  defendant;  defendant  agreed  to  pay  the  check  if  K. 
•would  direct  C.  D.  &  Co.  to  surrender  the  notes,  promising  to  presently 
return  the  notes;   K.  consenting  to  this  the  defendant  paid  the  check 


THE    DEMAND.  331 

§  356.  Purchaser  at  sheriff's  sale.  A  mere  purchaser  at  a 
sheriff's  sale,  who  does  nothing  more  than  purchase,  is  not  a  tres- 
passer, even  though  the  seizure  and  sale  hy  the  officer  may  have 
been  wrongful,  and  the  sale  convey  no  title.  If, upon  such  sale, the 
sheriff  delivers  the  property  to  the  purchaser,  a  demand  must  be 
made  of  him  before  suit*"  When,  however,  one  obtains  goods  by 
trespass,  and  they  are  subsequently  sold  by  the  oflRcer  on  execu- 
tion against  the  trespasser,  and  bought  by  the  plaintiff  in  execu- 
tion, a  want  of  demand  will  not  defeat  the  suit."  The  purchase 
in  such  case,  was  only  the  extinguishment  of  a  prior  debt,  and 
not  a  purchase  for  cash.*^ 

§  357.  Possession  taken  simply  as  an  act  of  charity,  or  to 
preserve  property,  not  a  conversion.  Where  one  takes  jios- 
session  of  property  as  an  act  of  charity  or  kindness,  or  for  the  pur- 
pose of  preserving  what  would  otherwise  suffer  damage,  it  is  no 
conversion.  There  is  no  wrongful  act  or  intention,  which  is  an 
essential  ingredient  in  an  action  for  wrongful  taking  or  detention. 
Consequently  a  demand  must  be  made.*' 

§  358.  Borrower  cannot  set  up  title  in  himself  as  against 
his  bailor.  A  borrower  or  a  bailee  for  hire,  cannot  set  up  title 
in  himself  against  his  l)ailor.  lie  must  first  restore  the  property. 
And  while  a  demand  is  neces.sary  in  such  cases,  when  the  defend- 
ant has  done  no  act  amounting  to  a  conversion,  a  claim  of  owner- 

■with  money  of  his  wife,  took  the  notes  and  delivered  them  to  his  wife; 
he  refused  to  surrender  the  notes  on  demand  of  the  plaintiff;  held,  that 
defendant  might  be  liable  for  the  breach  of  his  promise  to  return  the 
notes,  but  not  guilty  of  conversion  of  them.  Hunt  r.  Kane,  40  Barb.  638. 

A  creditor  to  whom  goods  have  been  entrusted  by  his  debtor  to  be 
sold  and  the  proceeds  applied  to  discharge  the  indebtedness,  and  other 
Indebtedness,  is  not  liable  for  a  conversion,  for  conveying  the  goods  to 
and  selling  them  at  a  different  place  than  that  specified  in  the  agree- 
ment, the  debtor  in  violation  of  the  agreement  having  wrongfully  ex- 
pelled the  creditor's  agent  and  resumed  possession  of  the  goods,  i)ut- 
ting  the  creditor  to  the  necessity  of  replevin  to  recover  them.  Housch 
V.  Washburn,  88  Ills.  215.] 

"Talmadge  v.  Scudder,  38  Pa.  St.  518. 

"Sargent  v.  Sturm,  23  Cal.  360.  [One  who  pla<i'.i  h  druiaini  for  col- 
lection In  the  hands  of  an  attorney  Is  liable  for  the  sale  of  the  pluin- 
tlff'H  goods  Instigated  by  tlie  attorney  In  good  faith,  though  the  statuto 
undfr  which  he  proceeds  Is  afterwards  declared  uncoustllutlonal. 
Pou(h«T  V.  nianchard,  86  N.  Y.  256.] 

"  See  ante,  i  3X3. 

"Kennel  v.  Robinson,  2  .1.  .1    Marsh    (Ky  »  SI. 


332  THE    LAW    OF    REPLEVIN. 

ship,  in  defiance  of  the  riglits  of  lender  or  hirer,  is  equivalent  to 
a  conversion,  and  renders  a  demand  unnecessary/" 

§  359.  Finder  of  property  entitled  to  a  demand.  The 
finder  of  lost  property  is  entitled  to  a  demand  before  being  sub- 
jected to  a  suit;  but  he  has  no  lien  for  expenses  gratuitously  be- 
stowed in  taking  care  of  it;  and  if  he  assert  his  intention  to  hold 
it  for  the  purpose  of  enforcing  such  a  lien,  he  will  be  guilty  of 
conversion.^'  Salvage,  as  allowed  in  the  maritime  courts,  stands 
on  an  entirely  different  l)asis,  and  is  enforced  only  in  respect  to 
goods  lost  on  the  high  seas."  When  a  raft  broke  loose  from  its 
fastenings  on  the  bank  of  a  river,  and  the  defendant  towed  it  to 
a  place  of  safety,  he  was  not  permitted  to  set  up  a  lien  for  his 
trouble,  however  meritorious  his  claim.*^  Where,  however,  a  re- 
ward is  offered  for  lost  property,  the  finder  is  entitled  to  retain 
possession  until  the  reward  is  paid.** 

§  360.  Taker  up  of  stray  animals.  The  taker  up  of  an 
estray,  who  fails  to  comi)ly  with  the  law  with  respect  to  such 
animals,  has  no  lien  for  his  trouble  or  expense.  He  is,  in  fact,  a 
trespasser.*^  But  when  the  defendant  took  up  stray  cattle,  com- 
plying with  the  terms  of  the  statute,  he  was  entitled  to  a  demand 
of  possession  and  a  tender  of  charges  before  he  could  be  held 
liable  in  this  action.*" 

§  361.  Purchaser  of  property  payable  in  installments  en- 
titled to  a  demand  before  forfeiture.  Where  one  bought  a 
sewing  machine,  and  was  to  i)ay  for  it  in  monthly  installments, 

"  aimpson  v.  Wrenn,  50  111.  222;  Loeschman  v.  Machin,  2  Starkie,  310. 
[A  bill  of  exchange  was  delivered  to  defendant  merely  to  secure  an  en- 
dorsement; he  discounted  it  and  deposited  the  proceeds  to  his  own 
credit,  held  a  conversion,  Atkins  v.  Owen,  4  Ad.  &  E.  819.  Doubted 
whether  a  promissory  note  made  to  another  for  his  accommodation  and 
actually  paid  by  and  surrendered  to  him,  is  the  property  of  the  maker; 
but  if  the  payee  asserts  a  right  of  action  upon  it,  against  the  maker, 
trover  lies;  and  he  cannot  defeat  the  action  by  surrendering  the  note, 
Park  V.  McDaniels,  37  Vt.  594.  One  entrusted  with  the  promissory  note 
of  the  plaintiff,  for  discount,  delivers  it  without  authority  to  another; 
he  is  guilty  of  a  conversion,  Laverty  v.  Snethen,  68  N.  Y.  522.] 

"Etter  V.  Edwards,  4  Watts.  (Pa.)  66,  citing  Binsted  v.  Buck,  2  W. 
Blacks.  1117. 

"Hartford  v.  .Tones,  1  Ld.  Raym.  393. 

"Nicholas  v.  Chapman,  2  H.  Bla.  254. 

"Cummings  v.  Gann.  52  Pa.  St.  484. 

"Bayless  v.  Lefaivre,  37  Mo.  119. 

"Holcomb  V.  Davis,  56  111.  416. 


THE    DEMAND.  333 

and  paid  first  installment,  and  refused  to  pay  the  next,  alleging 
the  machine  was  not  such  as  she  had  bought,  the  seller  brouglit 
replevin.  Held^  it  could  not  be  sustained  witiiout  proof  of  a  de- 
mand, and  an  ofl'er  to  refund  the  part  of  the  purchase  money 
which  had  been  p:iid.*' 

§362.  Unauthorized  interference  with  the  goods  of  an- 
other. A  forcible  seizure  is  not  necessary  to  constitute  a  wrong- 
ful taking  ;**  but  any  unlawful  or  unauthorized  intermeddling 
with  or  exercise  of  authority  over  the  property  of  another  is  an 
act  of  trespass,  and  if  accompanied  by  taking  and  detention, 
will  amount  to  a  conversion.*' 

§  363.  One  who  hires  property  for  a  special  purpose  can- 
not use  it  for  another.  When  a  person  hired  a  horse  for  a 
specified  journey,  and  drove  it  beyond,  it  was  held  a  conversion. 
So,  if  the  defendant  wrongfully  set  up  a  claim  for  a  lien  on  the 
property,  in  reply  to  a  demand  for  it,  it  is  sufficient  evidence  of  a 
conversion.^  When  the  owner  demanded  his  machinery  from 
defendants,  who  refused  to  allow  him  to  take  it  until  they  had 
got  other  in  its  place.  Held.,  to  be  an  unlawful  intermeddling  with 
the  plaintiff's  property,  without  any  pretense  of  right,  and  suf- 
ficient to  sustain  an  action.*' 

§  364.  Innocent  receiver  of  stolen  g-oods  may  be  liable 
for  conversion.  This  rule  has  been  carried  so  far,  that  a  person 
who  receives  stolen  goods  in  ignorance  of  the  owner's  rights,  lias 
been  held  liable  for  them.  Thus,  an  auctioneer  who  receives 
goods  from  a  thief  in  the  ordinary  course  of  business,  and  sells 
them,  and  pays  the  proceeds  to  the  thief,  without  any  notice  or 
knowledge,  was  iield   liable  for  (.-on version."     The  case  of  Iloff- 

"  Hamilton  v.  Singer  Sewing  Machine  Co..  54  111.  ?70. 

••Lee  V.  Gould.  47  Fa.  St.  308;  Haythorn  v.  Rushforth,  4  Har.  ICO; 
Kerley  v.  Hume,  3  T.  B.  Men.  (Ky.)  181;  Marchman  v.  Todd.  15  Geo. 
25;   Skinner  v.  Stouse.  4  Mo.  93. 

•Ralston  v.  Black.  15  Iowa,  48;  Squires  v.  Smith,  l(t  W  Mon.  (Ky.) 
33;  Ely  v.  Ehle.  3  Comst.  50C;  Hardy  r.  ClendeninR.  25  Ark.  4;5(;;  Oibhs 
V.  Chase.  10  Mass.  125;  Rohlnson  v.  .Miinsfleld.  13  IMck.  139;  I'IiIIHiih  v. 
Hall.  8  Wend.  CIO;  Alkn  v.  Crary,  10  Wend.  349;  Fonda  v.  Van  Homo. 
15  Wend.  «3i;  Neff  r.  Thomi)8on.  8  Harh.  213;  Miller  v.  Baker.  1  Met. 
27;   Wilson  r.  Barker,  4   H.  &  Adolph.  G14. 

"Jatrohy  V.  LauHsatt.  W  H.  &  K.  300. 

•'Haythorn  v.  Rushforth.  4  Har.  (19  N.  J.)  ICO. 

"Hoffman  v.  Carow,  22  Wend.  285.  Contra,  RoRcrs  v.  Hule,  2  Cul. 
672. 


334  THE    LAW    OF    REPLEVIN. 

man  V.  Carow  was  cited  approvingly  in  a  Vermont  case,  and  the 
court  says  that  probably  no  case  can  be  found  in  conflict  with 
it.*'  liut  where  one  took  goods  in  pledge  for  a  delit,  not  knowing 
thev  were  the  goods  of  a  third  party,  and  afterwards  re-delivered 
them  to  his  debtor,  upon  his  promise  to  sell  them  and  pay  the 
proceeds  to  him,  he  was  not  liable  to  the  owner.'*  When  defend- 
ant, a  jeweler,  sold  jewelry  for  A.,  and  paid  him  proceeds,  with- 
out notice  of  any  other  claim,  he  was  held  liable  to  the  true 
owner  for  the  value.^^  This  rule,  at  first  blush,  may  seem  liarsh  ; 
but  an  auctioneer  or  commission  man  of  known  responsibility 
ought  not  to  lend  the  credit  of  his  name  to  sell  goods  unless  he 
knows  the  title  will  pass.  If,  through  ignorance  or  carelessness, 
he  sells  stolen  goods,  and  his  customer  be  dispossessed,  he  ought 
to  answer  ;  and  if  the  goods  be  consumed,  or  cannot  be  had  by  the 
true  owner,  it  is  by  no  means  unjust  that  he  make  good  to  the 
owner  their  value,  which  he  has  lost.** 

§  365.  What  is  rightful  possession.  It  has  been  frequently 
held,  that  when  the  defendant's  possession  was  rightfully  ac- 
quired in  the  first  instance,  that  the  owner  of  the  goods  could  not 
sustain  an  action  for  them  without  proof  of  demand  and  refusal." 
The  application  of  this  general  rule  requires  the  solution  of  the 
question.  What  is  regarded  as  a  rightful  possession  ?  The  de- 
fendant may  have  purchased  the  goods  from  one  who,  to  all  ap- 
pearances, had  a  lawful  and  perfect  right  to  sell  and  deliver, 
although  in  fact  the  goods  may  have  been  taken  from  the  owner 
by  robbery  or  theft ;  or,  the  vendor  may  have  acquired  them  from 
the  owner  by  some  fraudulent  practice,  or  as  bailee  for  some 
special  purpose.  A  jeweler  may  sell  a  watch  left  in  his  hands  for 
repair,  or  a  carrier  dispose  of  the  goods  committed  to  him  for 
transportation.  An  officer  of  the  law,  armed  with  legal  process 
against  A.,  may  seize  upon  the  goods  of  B.  and  sell  them,  or  deliver 
them  to  a  custodian  until  the  day  of  sale.     In  these  and  a  multi- 

"  Courtis  V.  Cane,  32  Vt.  233.  Consult,  also,  Spraights  v.  Hawley,  39 
N.  Y.  441. 

"Leonard  v.  Tidd,  3  Met.  6. 

"  Bowen  v.  Tenner.  40  Barb.  383. 

=*  See  Spencer  v.  Blackman,  9  Wend.  167;  Everett  v.  CoflBn,  6  Wend. 
605;  M'Combie  t'.  Davies,  6  East,  538;  Thorp  v.  Burling,  11  Johns.  285; 
Farrar  v.  Chauffetete,  5  Denio,  527;  Pearson  v.  Graham,  6  Ad.  &  Ell. 
899;  Williams  v.  Merle,  11  Wend.  80. 

"Gilchrist  v.  Moore,  7  Clark,  (Iowa,)  11;  Newman  v.  Jenne,  47  Me. 
520;   Stanchfield  v.  Palmer,  4  Greene,  (Iowa,)   25. 


THE    DEMAND.  SaS 

tude  of  kindred  cases,  the  possession,  apparently  rightful,  is 
really  wrongful,  and  the  true  owner  can  recover,  and  usually 
without  demand.  The  rules  are  dift'erent  \n  diti'erent  courts  It 
has  been  held  that  where  the  defendant  acquired  possession  by 
purchase  from  one  apparently  the  owner,  such  j)ossession  was  so 
far  rightful  that  the  real  owner  must  make  demand  before  bring- 
ing suit  ;**  but  it  has  also  been  held  that  where  one  purchased 
property  from  one  who  had  no  right  to  sell,  it  was  a  conversion, 
and  the  owner  could  sustain  replevin  without  demand,  the  good 
faith  of  the  buyer  being  no  defen.se.^' 

§  36H.  Fraudulent  purchaser,  or  attaching  creditor  of 
same  not  entitled  to  demand.  When  merehandise  was  pur- 
chased on  credit,  throhgh  fraudulent  representations  by  the  buyer 
as  to  his  responsibility,  and  after  delivery  to  him  was  attached  b\^ 
his  creditors,  the  vendor  was  allowed  to  maintain  replevin  without 
demand."  In  a  subsequent  case,  the  right  of  the  deceived  vendor 
was  distinctly  put  upon  the  ground  of  his  right  to  rescind  an 
otherwise  valid  sale;  and  it  was  held  he  could  enforce  his  olainj 
only  while  the  goods  were  in  the  hands  of  the  vendor,  ot  some 
person  with  notice  of  his  rights.*'  In  Michigan,  when  propertj-- 
is  disposed  of  without  authority  by  a  person  having  it  in  chargei 
the  owner  may  bring  replevin  witliout  demand,  even  against  an 
innocent  purcha.ser.'"'^  So,  in  Maine,  the  defendant,  though  a 
honafde  purchaser  from  one  who  had  no  title  or  right  to  sell,  i? 
not  entitled  to  hold  the  property ;  the  owner  may  recover  it  in 
replevin  without  demand."     A  fraudulent  purchaser  acquires  a 

"  Stanchfield  v.  Palmer,  4  Greene,  (Iowa,)  24;  Ingalls  r.  Bulkley,  IS 
111.  315;  Hudson  v.  Maze,  3  Scam.  578;  Prlnple  v.  Phillips,  5  Sandf.  (N. 
Y.)  157;  Hall  r.  Robinson,  2  Corast.  295;  Wood  v.  Cohen,  G  Ind.  455; 
Conner  v.  Comstock,  17  Ind.  90.  Contra,  Lewis  v.  Masters,  8  Blackf. 
245;  Bussing  v.  Rice.  2  Cush.  48;  Thurston  v.  Blanchard,  22  Pick.  18; 
BufflnKton  v.  Gerrish,  15  Mass.  156;  Acker  v.  Campbell.  23  Wend.  372. 

"Gllmore  v.  Newton,  9  Allen,  171;  Riley  v.  Boston  Water  P.  Co.. 
11  Cush.  11;  Farley  v.  Lincoln,  51  N.  H.  577;  Williams  i\  Merle.  11 
Wend,  80.  See  Rilford  v.  MnntRomery,  7  Vt.  418;  Doty  r.  Hawkins.  G 
N.  H.  248;  Courtis  r.  Cane.  32  V't.  232;  Bloxam  v.  Hubbard.  5  East,  407; 
Cooppp  V.  Newman,  45  N.  H.  339;  Galvin  v.  Bacon.  11  Me.  28;  Soames  v. 
WattJj,  1  C.  k  Payne.  400;  Stanley  v.  Gaylord,  1  Cush.  53G;  Hydo  v. 
Noble,   13   N.   H.      494. 

"BufflnKton  v.  Gerrish,  15  Mass.  158;  BusslnK  v.  Rice,  2  Cuflh.  48; 
Acker   r.  C^ampbdl,  23   Wend.   372. 

•' HofTman  v.  NobU  .  r,  .M«.t.   (MasH.)   75. 

"Trudo  V.  AndfTHoii.  10  Mich.  357. 

"Prime  r,  Cobb,  <;3  Maine,  202. 


33G  THE    LAW    OF    REPLEVIN. 

voidable  title.  The  fraud  may  justify  the  veudor  in  rescinding 
the  sale  and  suing  for  the  goods  ;  but  until  rescinded,  the  sale  is 
valid,  and  it  is  optional  with  the  vendor  to  aflirni  it.  So,  when 
goods  obtained  through  fraudulent  purcliase  have  been  sold  to  a 
bona  fda  pureliaser,  without  notice,  replevin  does  not  lie.  The 
distinction  is,  that  a  fraudulent  purchaser  takes  a  title,  voidable, 
nevertheless,  but  perfectly  valid  until  rescinded  ;  and  if,  while 
holding  a  valid  title,  he  makes  sale  to  one  without  notice,  the  sale 
is  binding  on  the  owner  ;  but  a  thief  or  trespasser  takes  no  title, 
and  can  convey  none  by  any  sale  or  delivt-ry  he  may  make. 

§  367.  Fraudulent  taking  confers  no  right  on  the  taker. 
While  the  forcible  seizure  of  goods  of  another  is  always  regarded 
as  wrongful,  it  is  no  more  so  than  the  use  of  fraudulent  means  by 
which  to  obtain  possession.  He,  who  by  successful  fraud  obtains 
the  goods  of  another,  is  equally  guilty  of  wrongfully  taking  with 
him  who  seizes  them  by  superior  force.  It  follows  that  in  cases 
where  the  defendant  fraudulently  obtains  possession  no  demand 
is  necessary."  When  one  professed  to  have  a  warrant  for  the 
arrest  of  another,  and  under  that  pretense  made  an  arrest  and 
obtained  the  delivery  of  cattle  in  settlement,  replevin  would  lie 
for  the  cattle  or  trover  for  their  value,  without  demand."^ 

§  308.  Demand  necessary  where  an  officer  seizes  goods 
from  defendant  named  in  his  process.  Where  an  officer 
holding  proper  legal  process  takes  goods  from  the  possession  of 
the  defendant  named  in  his  writ,  he  is  but  doing  his  duty  and  his 
possession  is  lawful,  so  that  replevin  cannot  be  maintained  against 
him  without  demand.®* 

**  Bussing  V.  Rice,  2  Cush.  48;  Acker  v.  Campbell,  23  Wend.  372. 

*^  Foshay  v.  Ferguson,  5  Hill,  158.  Where  the  defendant  derives 
his  possession  by  purchase  for  value,  and  without  any  notice  of  any 
right  or  claim  by  any  other  person,  his  detention  is  usually  regarded 
as  rightful  until  an  opportunity  has  been  offered  him  to  restore  the 
goods.  Priam  v.  Barden,  5  Ark.  81;  McNeill  v.  Arnold,  17  Ark.  173; 
Trapnall  v.  Hattier,  6  Ark.  18;  O'Neill  v.  Henderson,  15  Ark.  235. 
Where  the  original  possession  was  acquired  by  fraud,  and  under  cir- 
cumstances which  did  not  transfer  the  title  from  the  owner,  and  where 
the  goods  were  seized  and  sold  on  execution  against  the  fraudulent 
purchaser,  and  purchased  by  the  plaintiff  in  the  execution,  it  would 
seem  that  the  purchaser  acquired  no  better  title  than  the  original  taker 
had.  In  such  a  case  the  defendant  could  not  claim  title  to  tne  goods 
and  resist  the  plaintiff  in  the  replevin  suit  on  the  ground  of  a  want  of 
a  demand  before  suit.     Sargent  v.  Sturm,  23  Cal.  360. 

"Vose  V.  Stickney,  8  Minn.  75;  Daumiel  v.  Gorham,  6  Cal.  43;  Taylor 


THE    DEMAND.  337 

§  369.     Contra ;    when   he   seizes   goods    from  another. 

When  the  property  is  seized  from  one  not  named  in  the  process, 
the  latter  may  sustain  replevin  upon  showing  that  the  goods 
belong  to  him,  without  proof  of  a  demand.*'  Tlie  taking  in  such 
case  is  wrongful.** 

§  370.  Innkeeper  or  carrier  ;  when  entitled  to  demand, 
A  carrier  ha.s  a  lien  on  goods  which  he  has  transported,  though 
he  might  have  demanded  his  charges  in  advance,  and  replevin  by 
the  consignor  or  owner  would  not  lie  against  him  \\'ithout  demand 
and  payment  of  charges.  So  of  an  innkeeper  with  respect  to  the 
goods  of  his  guest.  If  a  thief,  however,  take  goods  and  deposit 
them  with  a  carrier  for  transportation,  or  become  a  guest  at  an 
inn,  the  carrier  or  innkeeper  cannot  resist  the  true  owner  nor  can 
either  assert  a  lien,  though  the  action  cannot  in  such  case  be 
sustjiined  without  demand.'"'' 

§  371.  At  what  time  demand  must  be  made.  The  demand 
must  be  made  before  suit  is  liegun.'"  "When  demand  was  made 
by  an  officer  after  the  issuing,  but  before  service  of  the  writ,  while 
he  held  the  writ  in  his  hands,  it  was  held  too  late  ;  the  issuance 
r.  Seymour.  6  Cal.  512;  Killey  v.  Scannell,  12  Cal.  73;  Bond  v.  Ward, 
7  Mass.  123;  Shumway  v.  Rutter,  8  Pick.  443;  Bancroft  v.  Blizzard,  13 
Ohio,  30. 

•"Ledley  v.  Hays,  1  Cal.  160;  Tuttle  v.  Robinson,  78  111.  332. 

"Gimble  v.  Ackley,  12  Iowa,  27;  Chinn  v.  Russell,  2  Blackf.  (Ind.) 
172;  Buck  v.  Colbath,  3  Wall.  (U.  S.)   334. 

•Robinson  v.  Baker,  5  Cush.  137;  Fitch  v.  Newberry,  1  Doug. 
(Mich.)  1. 

"•Cheny worth  v.  Daily,  7  Porter,  (Ind.)  284;  Brown  v.  Holmes,  13 
Kan.  482.  [Demand  after  the  writ  Issues  and  before  service,  and 
which  is  refused,  is  sufficient,  because  convincing  evidence  that  if 
made  in  the  first  instance  it  would  have  been  unavailing;,  Rodgers  v. 
Graham,  36  Neb.  7S0,  ^r,  N.  W.  243;  O'Neill  v.  Bailey,  68  Me.  429;  but 
otherwise  where  the  statute  requires  an  affidavit  of  the  wrongful  with- 
holding as  a  condition  precedent  to  the  Issuance  of  the  writ,  Darling  v. 
Tegler,  30  Mich.  54;  McCarthy  v.  Hetzner,  70  Ills.  Ap.  481.  A  demand 
made  after  the  Institution  of  the  suit,  but  before  service  upon  a  new 
party  subsequently  added.  Is  good  as  to  such  jjarty;  until  served,  the 
suit  is  not  commenced  as  to  him,  McCarthy  r.  Hct/.ncr.  supra.  Plain- 
tiff conveyed  a  house  to  defendant;  nothing  was  said  as  to  the  gas  flx- 
tiires,  chandeliers,  gas  logs  and  llkt-  appllancos;  at  flvo  o'clock  on 
Saturday  afternoon  of  October  2'Jth  the  plaintirT  detnanded  them;  do 
fendant  replied  that  she  could  not  be  left  in  darknesK  Saturday  and 
Sunday  nightH,  that  he  could  have  them  on  Mon<lay  morning.  Held  for 
the  jury  to  decide  whether  the  demand  was  a  rea8onal)le  one,  Kane  v. 
Reld,  3:'>  MlHc.  802;  68  N.  Y.  Sup.  623.] 
22 


338  THE    LAW    OF    REPLEVIN. 

of  the  writ  is  the  beginning  of  the  suit."  In  Badger  v.  Phunie;/j 
15  ]M;iss  3G4,  (one  of  tlie  leading  cases  on  the  hiw  of  replevin,) 
this  question  arose,  and  the  court  said  :  "  It  is  a  sufficient  answer 
to  this,  tliat  if  the  defendant  had  delivered  the  goods  on  demand, 
there  would  have  been  no  necessity  to  serve  the  writ."  But  the 
general  rule  is  undoubted  that  where  goods  came  lawfully  into 
possession  of  defendant,  there  must  be  a  demand  and  refusal,  or 
proof  of  conversion,  before  suit  is  brought ;  proof  of  a  conversion, 
or  refusal  to  deliver  after  suit,  will  not  avail."  The  demand  must 
be  made  U[)on  defendant  at  a  time  when  he  has  it  in  his  power  to 
comply  ;  his  ability  to  comply  is  essential.  Demand  on  one  who 
did  not  have  the  property  would  be  useless."  But  proof  that  the 
defendant  had  parted  with  the  goods  fraudulently  for  the  purpose 
of  avoiding  the  demand,  has  been  held  sufficient  to  excuse  demand.'* 
If  the  defendant  have  the  goods  at  another  place  and  offer  to  go 
with  the  })hiintiff  and  deliver  them,  it  will  be  sufficient.  A  refusal 
to  deliver  at  the  place  of  demand  in  such  case,  is  no  evidence  of 
conversion." 

§  372.  The  effect  of  failure  to  prove  demand.  One  of  the 
most  important,  and  in  some  respects  one  of  the  most  difficult 
questions  arising  in  the  action,  is  as  to  the  effect  of  a  failure  to 
prove  a  demand.  A  very  common  opinion  is,  that  such  failure 
defeats  the  plaintiff,  and  that  a  return  of  the  goods  will  necessarily 
follow.  Decisions  are  not  wanting  which  seem  to  sustain  this 
view,"*  though  its  correctness  may  well  be  doubted.  Demand  and 
refusal,  it  must  be  remembered,  are  evidence  of  a  conversion  ;  that 
is,  of  a  conversion  at  some  time  prior  to  the  refusal."  The  pre- 
sumption as  to  when  the  conversion  was  actually  made,  ought  in 
all  cases  to  be  such  as  will  protect  the  real  equities  of  the  parties. 

"Alden  v.  Carver,  13  Iowa,  254;  Darling  v.  Tegler,  30  Mich.  F.4; 
Boughton  V.  Bruce,  20  Wend.  234;  Cummings  v.  Vorce,  3  Hill,  (N.  Y.) 
285. 

"'Storm  V.  Livingston,  6  John.  44;  Powers  v.  Bassford,  19  How.  Pr. 
309;  Purves  v.  Moltz,  5  Robt.  (N.  Y.)  G53. 

"Whitney  v.  Slauson,  30  Barb.  276;  Bowman  v.  Eaton,  24  Barb.  528; 
Hawkins  v.  Hoffman,  6  Hill,  586;  Whitwell  v.  Wells,  24  Pick.  29;  McAr- 
thur  V.  Carrie's  Admr.,  32  Ala.  87;  Harris  v.  Hillman,  26  Ala.  380. 

'*  Andrews  v.  Shattuck,  32  Barb.  397;  Fenner  v.  Kirkman,  2C  Ala.  653. 

"O'Connell  v.  Jacobs,  115  Mass.  21. 

^•See  cases  cited  in  notes  to  preceding  section. 

•^  Jessop  V.  Miller,  1  Keyes,  (N.  Y.)  321.  See  Purves  v.  Moltz,  5  Robts. 
(N.  Y.)  653. 


THE    DEMAND.  339 

Lord  Mansfield  once  allowed  proof  of  a  demand  after  bill  filed, 
holding  that  it  was  before  suit  was  brought,  (that  is  before  service,) 
saying  in  substance,  that  the  courts  ought  to  make  use  of  every 
presumption  possible,  rather  than  that  a  meritorious  party  should 
be  defeated  by  objections  which  do  not  relate  to  the  real  merits  of 
the  controversy.'*  Applying  these  rules  where  a  demand  is  made 
shortly  after  the  writ  issued,  the  refusal  ought,  ordinarily,  to  be 
evidence  of  a  conversion  before  the  writ  issued."'  If  the  defendant 
had  actually  been  willing  to  surrender,  he  could  have  snid  so,  and 
saved  all  further  litigation.  Where  the  defendant  sets  up  and 
insists  on  a  want  of  proper  demand,  he  ought  in  fairness  to  be 
confined  to  that  defense,  or  to  be  required  to  abandon  it.  If  he 
claims  any  lien  or  interest  in  the  property,  he  ought  not  to  Vie 
permitted  to  set  it  up  and  then  recover  under  pretense  that  he 
would  have  surrendered  the  property  if  he  had  been  requested  to 
do  so.  When  the  defendant  succeeded  because  of  a  want  of  a 
demand,  he  ought  never  to  have  return,  unless  on  the  clearest 
showing  that  he  is  entitled  to  such  a  judgment;  for  a  defendant 
to  recover  under  pretense  that  he  would  have  surrendered  the 
goods  had  they  been  demanded,  and  then  ask  that  they  be  returned 
to  him  would  seem  absurd.  The  utmost  he  can  ask  would  seem 
to  be  his  costs.  In  cases  where  the  plaintiff  shows  himself  to  be 
the  owner  and  entitled  to  possession  of  goods  had  he  demanded 

"Morris  v.  Piigh.  3  Burr.  1241. 

"Badger  v.  Phinney.  15  Mass.  364.  See  chapter  entitled  Return,  post. 
3.  [The  omission  of  demand  should,  if  the  plaintiff  is  entitled  to  the 
goods,  subject  him  to  no  other  consequences  than  the  payment  of  the 
costs,  Webster  v.  Brunswick,  etc.,  Co.,  37  Fla.  433.  20  So.  536;  Aultman  v. 
Stelnan,  8  Neb.  109;  and  see  Howard  v.  Braun,  14  S.  D.  579.  86  N.  W. 
635.  Where  mortgagee  replevies  from  one  in  peaceable  possession  with- 
out demand,  and  such  party  by  his  answer  tenders  a  surrender  of  the 
goods,  no  judgment  ran  be  taken  against  him  for  the  value;  the  plain- 
tiff should  accept  the  goods,  discontinue  as  to  such  defendant  and  pro- 
ceed as  to  the  other  parties  if  there  are  any,  Nichols  r.  Sheldon  Bank.  98 
la.  603,  67  N.  W.  582.  In  Connecticut  the  statute  provides  that  if. 
under  plea  of  the  general  issue,  defendant  proposes  to  deny  detention. 
he  must  flie  an  express  disclaimer  of  right  in  which  case  he  shall  not 
be  entitled  to  return.  Held  und«^r  this  that  defendant,  omitting  to  file 
his  disclaimer,  may  be  found  guilty  of  the  unlawful  detention  of  the 
goods  without  any  proof  of  demand.  McNamara  v.  Lyon.  69  Conn.  447. 
37  Atl.  981.  The  court  has  dlHcrc'tlon  to  allow  plalrilirf  to  re  oprn  his 
case  and  prove  u  demand  after  once  resting,  Wyatt  i".  Freeman,  4  Colo. 
141 


340  THE    LAW    OF    REPLEVIN. 

them,  a  mere  oversight  or  neglect  to  prove  demand  ought  not  to 
be  punished  by  taking  his  goods  and  handing  them  over  to  one 
who  asserts  no  title.  The  only  reason  why  demand  is  necessary 
in  any  case,  is  to  give  the  defendant  an  opportunity  to  surrender 
without  being  put  to  costs  ;  and  while  this  is  eminently  proper, 
the  object  of  the  rule  is  fully  accomplished,  and  the  plaintiff 
sufficiently  punished  for  his  neglect  by  judgment  against  him  for 
costs,  without  being  compelled  to  surrender  his  goods. 

§  373.  Waiver  of  demand  by  defendant.  Cases  often  arise 
when  the  defendant  would  be  entitled  to  a  demand,  but  has  done 
some  act  or  made  some  declaration  Avhich  excuses  the  plaintiff 
from  making  it.  Proof  of  any  circumstance  which  Avould  satisfy 
a  jury  that  a  demand  would  have  been  unavailing  (as  a  refusal 
by  the  defendant  to  listen  to  one,  or  a  statement  in  advance  that 
he  will  not  deliver,)  will  be  sufficient  to  excuse  this  proof.**"  If  a 
bailee  sets  up  ownership  of  the  goods  in  himself,  such  claim  is 
equivalent  to  a  conversion,  and  the  action  will  lie  without  demand.*' 
The  plaintiff  offered  to  prove  that  the  defendants  gave  a  general 
order  to  all  their  hands  not  to  deliver  the  horse  in  dispute  to 
him,  or  any  one  for  him ;  held^  proper  to  go  to  the  jury  as  tending 
to  prove  a  conversion  by  defendants.^'  Where  parties  stipulated 
that  the  goods  should  be  sold  and  the  proceeds  paid  over  to  the 
party  who  was  entitled  to  them,  this  obviated  the  necessity  for 
proof  of  a  demand.**'  When  the  defendant,  by  his  pleading,  admits 
a  demand,  proof  of  one  is  unnecessary.** 

§  374.  The  same.  Claim  of  ownership  by  defendant. 
Where  the  defendant  sets  up  a  claim  of  ownership  and  demands 
a  return  of  the  goods,  this  claim  is  inconsistent  with  any  hypo- 
theses that  he  would  surrender  them  on  demand,  and  will  obviate 
the  necessity  of  proving  demand.*^  And  the  rule  may  be  stated 
as  general,  that  when  the  defendant  contests  the  case  all  through 
the  trial  upon  a  claim  of  superior  right  to  the  property,  he  can- 

"«  Johnson  v.  Howe,  2  Gilm,  344;  Cranz  v.  Kroger",  22  111.  74;  La  Place 
V.  Aupoix,  1  Johns.  Ca.  407;  Appleton  v.  Barrett,  29  Wis.  221;  Lutz  v. 
Yount.  Phill.  (N.  C.  L.)  367. 

"  Simpson  v.  Wrenn,  50  111.  224. 

*»  Johnson  v.  Howe,  2  Gilm,  344. 

*^  Butters  v.  Haughwout,  42  111.  24. 

"*  Jones  V.  Spears,  47  Cal.  20. 

"  Seaver  v.  Dingley,  4  Green.  (Me.)  307;  Smith  v.  McLean,  24  Iowa, 
337;  Newell  v.  Newell,  34  Miss.  385;  Cranz  v.  Kroger,  22  111.  74;  Per- 
kins V.  Barnes,  3  Nev.  557;  Pierce  v.  Van  Dyke,  6  Hill,  613. 


THE    DEMAND.  341 

not  afterwards  set  up  a  want  of  demand  as  a  reason  for  his  fail- 
ure to  surrender.  When  he  desires  to  rely  on  a  want  of  demand 
he  should  show  a  willingness  to  deliver  the  goods  upon  a  proper 
one,  and  that  none  }iad  been  made.' 

§  375.  Upon  whom  the  demand  must  be  made.  As  be- 
fore stated,  the  demand  must  l)e  made  upon  one  who  has  posses- 
sion of  the  goods  and  is  able  to  deliver  them  in  compliance  with 
such  demand."  It  should  usually  be  made  personally  upon  the 
party  who  is  expected  to  comply  with  it.  A  demand  on  defend- 
ant's wife  or  servant  is  not  sufficient  evidence  of  a  conversion  by 
the  husband  i>r  master.*"  l>ut  if  the  party  pretends  he  has  the 
goods  when  the  demand  is  made,  and  induces  the  plaintiff  to  sue 
him,  he  cannot  defend  on  the  ground  that  he  did  not  have  them."* 
When  goods  are  bailed  to  the  defendant  a  demand  at  the  house 
of  the  bailee  in  his  absence  is  not  evidence  of  a  conversion,  unless 
it  be  shown  by  circumstances,  or  otherwise,  that  he  had  actual 
notice  of  the  demand  before  the  suit  was  begun.**  But  if  the  bai- 
lee should  be  guilty  of  any  actual  conversion  he  is  answ^erable. 
When  one  was  entrusted  with  a  package  of  money  for  safe  keep- 
ing and  broke  the  package  and  appropriated  the  money,  he  was 

••  Homan  r.  Laboo,  1  Neb.  207. 

■"Whitney  v.  Slauson,  30  Barb.  276;  Andrews  v.  Shattuck,  32  Barb. 
397;  McArthur  v.  Carrire's  Admr.,  32  Ala.  87;  Whitwell  v.  Wells,  24 
Pick.  29;  Lill,  etc.,  v.  Russell,  22  Wis.  178.  [Demand  upon  one  having 
no  control  of  the  goods  amounts  to  nothing,  Barnes  t'.  Gardner,  60  Mich. 
133,  26  N.  W.  858.  So  demand  upon  a  mere  custodian  who  has  no  au- 
thority and  announces  this  when  the  demand  is  made,  Kellogg  v.  Olson, 
34  Minn.  103.  24  N.  W.  364.  A  demand  for  livestock  upon  defendant's 
agent  in  charge  of  his  herds,  is  sufficient,  Mann  v.  Arkansas  Co.,  24 
Fed.  261;  Deeter  v.  Sellers.  102  Ind.  458,  1  N.  E.  854.  Where  a  husband 
and  wife  are  in  joint  possession,  no  demand  of  the  wife  Is  required  to 
sustain  the  action  against  the  husband,  McGregor  v.  Cole.  100  Mich.  262, 
58  N.  W.  1008.  A  demand  of  household  goods  from  the  wife,  she  having 
them  In  the  house,  is,  where  the  hu.sband  cannot  be  found,  sufficient, 
GoldHmith  V.  Bryant,  26  Wis.  34,  Wheeler  Co.  v.  Teetzlaff.  53  Wis.  211,  la 
N.  W.  15.'i.  Stock  left  with  a  |)artner8hip,  afterwards  dissolved;  a  de- 
mand upon  the  continuing  member  after  the  dissolution,  will  not  w.ir- 
rant  a  verdict  against  the  retired  members,  Sturges  r.  Keith,  57  Ills. 
451.] 

"Storm  V.  Livingston.  6  John.  44;  Mount  r.  Derick,  5  Hill.  456;  Totho 
nier   v.   IJawson.   Holt,    N.    V.   383. 

•Hall  V.  White,  3  Car.  k  V    136. 

"White    V.  Demary,  2  N.  H.  546. 


342  THE    LAW    OF    REPLEVIN. 

liable  without  demand.*'  When  goods  were  in  the  actual  custody 
of  the  defendant's  wife  and  daughter,  and  he  absented  himself 
from  home,  the  wife  was  held  his  agent  for  purposes  of  demand 
and  refusal."  When  the  proi)erty  is  held  by  two  or  more  de- 
fendants acting  severally  the  demand  should  be  upon  both  ;  but 
if  they  be  partners,  or  acting  jointly,  a  demand  on  one  would  be 
held  to  extend  to  both.®" 

§  376.  No  particular  form  necessary.  There  is  no  particular 
form  to  be  observed  in  making  a  demand,  provided  the  defend- 
ant is  distinctly  notified  what  goods  are  wanted.'  A  demand  for 
B.'s  stock,  if  not  objected  to,  and  no  claim  that  the  demand  should 
be  more  specific,  is  sufficient."*  When  the  plaintiff  said,  "I  have 
come  to  demand  my  property,  here  is  a  list  of  it."  Ileld^  suf- 
ficient. A  written  demand  left  at  the  defendant's  house  may  be 
good."*  It  is  not  necessary  that  the  plaintiff  compel  the  defend- 
ant to  go  with  him  to  point  out  the  several  articles  demanded,  or 

"'  Shelden  v.  Robinson,  7  N.  H.  157.  See  Graves  v.  Ticknor,  6  N.  H. 
537;  Poole  v.  Adkisson,  1  Dana,  110;  Hosmer  v.  Clarke,  2  Gr.  (Me.)  308. 

•'Goldsmith  v.  Bryant,  26  Wis.  34.  In  this  case,  however,  there  was 
evidence  to  show  a  fraudulent  purpose  on  the  part  of  the  defendant  in 
absenting  himself,  with  collusion  on  the  part  of  the  wife. 

"=  Nisbet  V.  Patton,  4  Rawle,  119;  Newman  v.  Bennett,  23  111.  427; 
Mitchell  V.  Williams,  4  Hill,  13;  Holbrook  v.  Wight,  24  Wend.  169. 

"'Colegrave  v.  Dias  Santos,  2  B.  &  C.  76;  La  Place  v.  Aupoix,  1  John. 
Ca.  407;  Thompson  v.  Shirley,  1  Esp.  N.  P.  C.  31;  Smith  v.  Young,  1 
Camp.  440.  [It  is  sufficient  to  demand  live  stock  by  the  brands,  Mann  v. 
Arkansas  Co.,  24  Fed.  261.  Inquiry  by  a  hired  man  for  his  master's 
horses,  stating  "  I  am  after  them,"  is  sufficient,  Kiefer  v.  Carrier,  53 
Wis.  404,  10  N.  W.  562.  Vendor's  agent  went  to  defendant's  mill  where 
there  were  logs  belonging  to  the  vendor,  assumed  possession  of  the 
lumber  on  hand,  i)lacing  it  in  possession  of  certain  employees  of  the 
vendor,  and  forbade  further  shipments.  Held  this  was  equivalent  to  a 
demand,  Hyland  v.  Bohn  Co.,  91  Wis.  574,  65  N.  W.  369.  If  an  officer 
who  has  attached  goods  gives  an  unqualified  refusal  on  demand  there- 
for, plaintiff  is  under  no  duty  to  explain  his  title,  Thompson  v.  Rose, 
16  Conn.  71;  Schoolcraft  v.  Simpson,  123  Mich  215,  81  N.  W.  1076.  When 
the  refusal  of  a  demand  is  relied  upon  as  evidence  of  a  conversion,  it 
must  not  be  left  doubtful  at  what  date  it  was  made,  Swartout  v.  Evans, 
37  Ills.  442. 

Plaintiff  is  not  under  any  duty  to  give  the  defendant  opportunity  to 
satisfy  himself  of  the  rightfulness  of  the  demand;  he  may  immediately 
replevy,  Parker  v.  Palmer,  13  R.  I.  359.] 

"=*  Newman  v.  Bennett,  23  111.  428. 

»« Logan  V.  Houlditch,  1  Esp.  N.  P.  C.  22;  1  Chitty  PI.  159. 


THE    DEiMAND.  343 

that  he  compel  him  to  listen  to  a  description  of  them.  It  is 
enough  that  the  defendant  refuses  to  comph',  or  evades  the  hear- 
ing of  demand.^' 

§  377.  General  rules  governing  the  demand.  Cases  arise 
where  the  defendant  comes  lawfully  into  possession,  and  is  in 
ignorance  of  plaintiff's  rights.  In  such  case  the  demand  ought 
to  be  accompanied  by  some  explanation  or  statement,  so  that  the 
plaintiff  can  act  advisedly.  For  example,  goods  taken  by  tres- 
pass may  have  come  to  the  defendant's  possession  through  un- 
questioned sources,  and  for  full  value.  An  unexplained  demand 
for  such  property  by  a  stranger  would  be  properly  refused.  The 
demand  ought  to  be  accompanied  bj'  a  statement  of  the  claim, 
and,  under  ordinary  circumstances,  a  reasonable  opportunity 
allowed  the  defendant  to  satisfy  himself  of  the  truth  of  the  claim- 
ant's title. 

§378.  The  same;  illustrations.  If,  after  demand  is  made 
for  goods,  the  possessor  answer  that  he  is  not  satisfied  that  the 
person  demanding  is  the  owner,  but  that  he  is  ready  to  deliver 
on  reasonable  proof  thereof,  this  will  not  be  regarded  as  a  con- 
version. It  is  the  answer  of  a  prudent  man.  So,  where  one 
claims  to  be  an  agent,  and  demand  goods  for  his  principal,  the 
party  upon  whom  the  demand  is  made  may  require  proof  of 
agency.'"  When  demand  was  made  upon  the  retiring  deacon  of 
a  church,  that  he  surrender  the  communion  service,  he  replied,  he 
"would  take  the  advice  of  coun.scl."     J/c/d,  right  and  prudent."* 

§379.  Demand  by  father  or  guardian.  A  demand  made  by 
a  father,  or  one  who  stands  in  loco  parentis,  is  suflBcient  for  prop- 
erty of  his  minor  children."*     So,  also,  demand  may  be  made  by 

"Appleton  V.  Barrett,  29  Wis.  221. 

^  Jacoby  v.  Lau.s.satt,  C  S.  &  R.  305;  Green  v.  Dunn,  4  Camb.  21  r.;  Solo- 
mons r.  Dawes,  1  Esp.  83;  Watt  v.  Potter,  2  Mason  C.  C.  77;  Ingalls  v. 
Bulkley,  13  111.  316. 

"Page  V.  Crosby,  24  Pick.  216. 

""Newman  v.  Bennett.  23  III.  428;  Smith  v.  Williamson.  1  Har.  &  J. 
(Md.)  147.  [A  minor  may  effectually  demand  chattels  to  which  he  is 
entitled;  no  Bubsecjuont  demand  by  the  next  friend,  is  required,  Bush  v. 
CJroomes,  12.^  Ind.  14,  24  N.  E.  SI.  A  mere  servant  sent  for  the  |)ur- 
pose  may  make  the  demand,  Kiefer  r.  Carrier,  r)3  Wis.  4(i4,  10  N.  W. 
562.  One  who  has  assigned  his  estate  as  an  insolvent  cannot,  there- 
after, make  any  demand  for  the  goods  except  in  the  assignee's  name, 
and  accompanying  It  with  evidence  of  his  authority,  OrilTln  i».  Alsop, 
4  Calif.  406.     The  authority  of  an  agent  to  make  a  demand  must,  IL 


344  THE    LAW    OF    REPLEVIN. 

an  agent  or  any  one  duly  uutlioiized  to  act  for  the  owner.  When 
an  agent  is  charged  with  the  whole  duty  of  receiving,  receii)ting 
for  and  delivering  property,  as  is  the  case  with  railroad  and  ex- 
press agents,  a  demand  upon  the  agent  is  a  demand  upon  the 
corporation.'*" 

§  380.  Refusal  to  deliver.  The  true  grounds  thereiore 
must  be  stated.  When  tlie  defendant  refuse  to  deliver  to  the 
agent  of  the  plaintifT,  for  the  reason  that  the  agent  had  no  author- 
ity, his  refusal  must  rest  distinctly  upon  that  ground.  The  agent 
will  then  be  bound  to  produce  his  authority,  or  show  that  the  de- 
fendant's refu.sal  is  captious.  If  he  does  not,  defendant's  refusal 
will  be  only  an  act  of  proper  caution.  To  an  unqualified  refusal, 
however,  the  agent  is  not  required  to  produce  any  authority.'"* 

seems,  be  in  writing  and  must  be  exhibited  if  demanded.  Watt  v.  Pot- 
ter, 2  Mason.  77;  but  this  is  doubted  in  Ingalls  v.  Buckley,  13  Ills.  31S. 
If  defendant  reasonably  doubts  the  authority  of  the  agent  he  is  not 
guilty  of  an  unlawful  detention;  the  question  is  one  for  the  jury,  In- 
galls V.  Buckley,  supra.  A  demand  made  by  one  without  any  authority 
from  the  plaintiff,  is  nothing.  Holiday  v.  Eartholomae,  11  Ills  Ap.  206. 
The  demand  cannot  be  effectually  made  while  the  plaintiff  himself 
has  the  goods  in  possession,  or  a  material  part  thereof;  e.  g.,  the  "  head  " 
of  a  sewing  machine,  which  is  the  subject  matter  of  the  action,  Wheeler 
etc.,  Co.  V.  Teetzlaff,  53  Wis.  211,  10  N.  W.  155.] 

""  Cass  V.  N.  Y.  &  N.  H.  R.  R.,  1  E.  D.  Smith,  522. 

""St  John  V.  O'Connell,  7  Porter,  (Ala.)  466;  Zachary  v.  Pace,  4  Eng. 
(Ark.)  212;  Connah  v.  Hale,  23  Wend.  463;  Solomons  v.  Dawes,  1 
Esp.  83;  Jacoby  v.  Laussatt,  6  Serg.  &  R.  300;  Watt  v.  Potter,  2  Mason, 
77-81.  [One  who  gives  an  unqualified  refusal  to  the  demand  of  the 
true  owner  cannot  afterwards  set  up  a  lien  upon  the  goods,  Thompson 
I'.  Rose,  16  Conn.  71;  so  if  he  refuse  under  claim  of  right.  Keep  Co.  v. 
Moore,  11  Lea.  285.  And  one  who,  upon  demand  for  goods  in  his 
possession  asserts  title,  refuses  the  demand  and  bids  the  party  to  take 
the  law,  will  not  be  permitted  afterwards  to  assert  that  he  held  as 
a  servant  merely,  Alexander  v.  Boyle,  68  Ills.  Ap.  139.  There  may  be 
reasons  to  excuse  or  justify  a  non-delivery,  without  any  denial  of  the 
owner's  right;  e.  gr..  if  the  party  upon  whom  demand  is  made  honestly 
doubts  the  identity  of  the  party  making  the  demand  or  the  authority 
of  one  claiming  to  be  the  agent  of  the  owner,  or  where  the  refusal  is 
upon  a  proper  condition  which  he  has  the  right  to  impose.  Plaintiff's 
corn  was  stored  in  defendant's  crib,  solely  for  plaintiff's  accommoda- 
tion, and  plaintiff  refused  to  remove  it  after  repeated  requests,  so 
that  defendant  in  order  to  have  the  use  of  the  crib  was  compelled  to 
bury  the  plaintiff's  corn  under  his  own,  and  was  unable  to  comply 
with  a  demand  for  it  without  great  inconvenience;  such  inconvenience 
might  excuse  the  refusal  of  the  demand,  Kime  v.  Dale,  14  Ills.  Ap.  308; 
so  a  qualified  and  reasonable  refusal;  e.  g.,  "  let  some  one  who  ki.ow8  the 


THE    DEMAND.  345 

§  381.  The  same.  What  is  a  sufficient  excuse  for  non- 
delivery. When  a  party  claims  a  lien  on  goods  in  his  possession, 
he  should  state  the  amount  of  his  lien,  and  the  grounds  upon 
which  he  bases  it  when  the  demand  is  made.  Retention  on  other 
grounds,  without  such  statement,  will  be  a  waiver  of  the  lien. 
When  work  was  done  on  a  boiler,  for  which  the  defendant  had  a 
lien,  as  also  a  general  account  against  the  owner,  if,  at  the  time 
of  the  demand,  he  insisted  on  detaining  it  until  the  balance  of  the 
account  was  paid,  he  could  not  afterward,  on  trial,  set  up  the 
particular  lien  to  defeat  the  plaintiff's  suit.  If,  however,  he  had 
specifically  mentioned  the  amount  for  which  the  lien  was,  and 
asserted  his  right  to  detain  for  that  amount,  and  for  the  general 
balance  of  the  account,  the  plaintiff  would  have  been  required  to 
tender  the  amount  of  the  particular  lien  before  he  could  sustain 
replevin.'"'  Neither  can  a  bailee  of  goods  base  his  refusal  to  de- 
liver on  demand  on  his  desire  to  consult  his  bailor,  and  then  at 
the  trial  set  up  a  lien  for  storage.'*'*  The  law,  in  such  case,  re- 
quires the  defendant  to  act  in  good  faith,  and  to  put  his  refusal 
on  the  true  ground,  which  he  will  rely  upon  at  the  trial.'"*  lie 
cannot  make  one  excu.se  when  the  demand  is  made,  and  then, 
when  suit  is  brought,  defend  on  another  and  different  ground. 
The  defendant,  in  answer  to  a  demand,  cannot  pretend  he  has  the 
goods,  and  induce  the  plaintiff  to  sue  him,  and  then  resist  the 
suit  on  the  grounds  that  he  did  not  have  them.'"*     When  goods 

things  come  and  get  them,"  is  no  evidence  of  a  conversion,  Butler  v. 
Jones,  80  Ala.  436.  citing  Green  v.  Dunn,  3  Camp.  216.  If  defendant, 
who  was  an  Innocent  purchaser  and  ignorant  of  the  rights  of  the  true 
owner,  ask  time  to  investigate  the  title,  replevin  will  not  lie  during 
the  time  reasonably  required  for  the  investigation.  Partridge  v.  Phil- 
brick,  60  N.  H.  556.  The  wife  cannot  charge  the  husband  by  her  refusal 
to  deliver  even  such  an  article  as  a  sewing  machine  which  she  uses  ex- 
clusively. Wheeler,  etc.,  Co.  v.  Teetzlaff,  53  Wis.  211.  10  N.  W.  155. 
Demand  of  a  mere  bailee  after  the  goods  have  passed  out  of  his  pos- 
session, is  ineffectual,  Haines  r.  Cochran,  26  W.  Va.  719;  and  a  refusal 
in  order  to  charge  the  defendant,  must  be  in  some  i)roximlty  to  the 
property,  and  under  circumstances  showing  a  determination  to  exercise 
dominion  and  exclude  the  owner,  Glllet  v.  Roberts,  57  N.  Y.  28.] 

'••Thatcher  v.  Harlan,  2  Houst.  (Del.)  194;  Thompson  v.  Trail,  6  B. 
4  C.  36;  White  v.  Gainer,  2  Blng.  23;  Jacoby  v.  Laussatt,  6  S.  &  R.  ( Pa  ) 
304. 

•»♦  Holbrook  r.  Wight.  24  Wend.  169. 

'*  Isaack  V.  Clark.  2  IJulct,  312;  Jacoby  v.  LausHatt,  6  S.  4  R.  (Fa.) 
304. 

••Hall  V.  White.  3  Car.  &  1'    ]?.>'. 


346  THE    LAW    OF    REPLEVIN. 

are  entrusted  to  a  servant,  and  he  refuses  to  deliver  them  to  a 
stranger,  because  he  had  no  authority  to  do  so,  such  refusal  is  not 
evidence  of  conversion  in  an  action  against  the  servant.  Nor  is  a 
demand  on  the  servant  sufficient  to  charge  the  master,  unless  he 
acted  under  orders.  If  the  servant  refuse,  and  the  master  after- 
ward approve  of  the  refusal,  for  the  reason  that  the  servant  had 
no  authority,  it  is  no  evidence  of  conversion  by  the  master."" 

§  382.  The  same.  It  is  proper  for  the  master,  when  entrust- 
ing property  to  his  servant,  for  which  he  is  responsible  to  an- 
other, to  direct  that  it  shall  not  be  delivered  to  any  one,  except 
upon  the  master's  written  or  personal  order,  and  a  demand  on 
the  servant,  under  such  circumstances,  would  avail  nothing  until 
he  could  communicate  with  and  take  the  order  of  the  master.'"" 
When  W.  and  R.  hired  cows,  and  AV.  took  them  to  his  farm,  some 
miles  from  R.'s,  andatthe  end  of  the  time  the  owner  demanded  them 
from  R.,  who  said  he  would  have  nothing  to  do  with  the  cows : 
Jleld,  it  was  for  the  jury  to  determine  whether,  by  the  reply,  ha 
intended  to  withdraw  from  a  dispute  about  the  property,  (and  if 
so,  it  was  no  conversion,)  or  to  collude  wnth  W.  to  hinder  the 
owner  from  recovering  his  property,  Avhich  latter  would  be  equi- 
valent to  a  positive  refusal.'"" 

§  3S3.  The  same.  The  defendant  rightfully  took  certain 
property,  and  with  it  a  stone.  Plaintiff  demanded  its  return. 
Defendant  said  he  could  have  it  by  going  to  his  (defendant's) 
locker.  Plaintiff  refused  to  go,  but  demanded  its  return  to  the 
place  whence  it  was  taken.  Defendant  refused  to  comply.  Held, 
no  conversion."" 

'"Mount  V.  Derick,  5  Hill,  456;  Mires  v.  Solebay,  2  Mod.  242;  Alex- 
ander V.  Southey,  5  B.  &  Aid.  247;  Storm  v.  Livingston,  6  John.  44;  4 
Inst.   317. 

'«« Page  V.  Crosby,  24  Pick.  215. 

'"Mitchell  V.  Williams,  4  Hill,  16. 

''"O'Connell  v.  Jacobs,  115  Mass.  21. 


THE    BOND. 


347 


CHAPTER  XIV. 


THE  BOND. 


Section. 

No  bond  required  by  tlie  com- 
mon law 384 

The  English  statutes  tlie  basis 
of  tlie  law  concerning  bond 
in  this  country    .        .    385  to  387 

The  bond  a  prerequisite  .  388  to  391 

The  bond  must  conform  to  the 
statute 392 

The  bond  not  necessary  to  the 
trial 393 

Where  tlie  slieriff  is  a  party      .  394 

Defendant  may  give  bond  and 
retain  the  property        .        .  395 

Bond  not  necessary  where  the 
plaintiff  does  not  ask  delivery  396 

Objects  and  purposes  of  the 
bond    .         .         .         .       397  to  399 

Amount  of  penalty  in  the  bond  ; 
how  ascertained       .         .         .  400 

Sheriff  may  take  the  property 
for   purjKjse  of  ai)praisenient  401 

Sheriff  not  requinjd  to  prepare 
bond  ;  duty  of  the  party         .  402 

To  whom  payable        .  .  403 

Though  defective  as  a  statutory 
lx»nd,  it  may  be  good  at  com- 
mon law  .         404,  405 

By  wliotn  it  must  1)0  exe- 
cuted   ....         400.  407 

How  executed  .  .     408  to  412 

The  conditions  H«ii)arate  and  in- 
de[>enderit  of  ea<rh  other         .  413 

Tlie  conditionH  to  proM«cute 
witliout  delay  .  .414 

To  prfjwjcute  with  e(T««ct     .  4 IT..  \\(] 


Section. 

Prosecution  in  inferior  court 
not  sufficient  when  the  case  is 
appealed 417 

Death  of  party  pending  suit      .  418 

The  condition  to  return      .         .  419 

Offer  to  return  unaccompanied 
by  a  tender  not  a  perform- 
ance   420 

The  condition  to  return  requires 
the  return  of  tlie  identical 
goods 421 

And  in  as  good  order  as  when 
taken 422 

Judgment  for  a  return,  a  breach 
of  the  condition       .        .         .  423 

The  bond  only  relates  to  claims 
in  the  suit  in  wliich  it  is  given  424 

Actual  delivery  of  the  goods  on 
the  writ  jireoedes  liability 
upon  the   bond         .  .  425 

Actual  retiuii  in  as  good  order 
a  comiiliaiice  with  this  con- 
dition         426 

Right  of  action  accrues  upon  a 
failure  to  keep  any  of  the  con- 
ditions    ....     427.  428 

Right  of  tlie  securities      429  to  431 

Any  material  alteialion  in  the 
bond  aiinulH  it         .         .         .  432 

The  same.  Securities  bound  hy 
acts  of  the  priii(-i|ial         .         .  VM 

Hut  a  settlement  doi>H  not  bind 
nor  (liHcharge  th(>m  .  434 

Submission  to  arbitration  dovH 
not  bind  HecuritieH  .  .  435 


348 


THE    LAW    OF    REPLEVIN. 


Section 
Technical  defenses  to  bond  not 

favored     ....    436,  43" 
The  liability  of  a  guardian  per- 
sonal          

Where  the  words  are  ambiguous 

the  intent  will  govern    . 
Proceedings  on  the  bond  gov- 
erned by  statute 
Debt  a  proper  form  of  action 
thereon     ..... 
Assignment  of  the  breaches 
Proceedings  in  the  replevin  es- 
sential to  sustain  suit  on  the 

bond 

The  material  facts  to  be  set  up  444 
When  bond  is  lost  from  the  files  445 
Defense  to  suit  on  bond     .        .  446 
When  ownersiiip  of  property  is 
settled  in  the  replevin  suit     . 
When  not  so  settled,  it  may  be 

set  up  in  suit  on  the  bond 
Defenses  which  should  be  made 

in  the  replevin  suit 
Miscellaneous  rules  in  suits  on 
bond 


438 


439 


440 


441 
442 


443 


447 


448 


449 


450 


Section, 
be- 


451 


452 


453 


Variation    in    description 
tween  the  bond  and  affidavit 
no  defense        .... 

Submission  of  the  replevin  suit 
to  arbitration  a  defense  . 

Value  of  tlie  property  stated  in 
bond  ;  liow  far  binding  . 

Where  the  value  of  a  number 
of  articles  is  stated  at  a  gross 
sum  ......  454 

Effect  of  the  destruction  of  the 
property 455 

Parties  to  suit  on  bond  cannot 
discharge  it  to  the  injury  of 
the  sheriff         ....  456 

Damages  on  bond  ;  how  assessed  457 

The  same.     Amount  of      .         .  458 

The  same.  In  case  of  joint 
owner        ..... 

Relea,se  of  bond  by  seizure  on 
another  writ  pending  suit 

Limitation  to  suit  on  l)ond 

Suit  on,  by  sheriff,  may  be  in 
his  individual  name 


459 

460 
461 


462 


§  384.  No  bond  required  by  the  common  law.  By  the 
coramoii  hiw  no  bond  was  required,  the  only  seeurity  being  the 
pledges  to  prosecute  the  suit,  or  answer  to  the  King  for  false 
clamor.' 

§  885.  The  English  statute.  By  statute  11  George  II.,  Ch. 
19,  §  23,  the  sheriff  was  required  to  take  from  the  plaintiff  a  bond, 
with  two  securities,  in  double  tiie  value  of  the  goods  about  to  be 
replevied,  conditioned  to  prosecute  the  suit  with  effect  and  with- 
out delay,  and  for  a  return  of  the  goods  if  return  should  be 
awarded  by  the  court.  The  sheriff  was  liable  as  a  trespasser  if  he 
'served  the  writ  which  commanded  a  delivery  of  the  goods  with- 
out first  taking  bond.  He  was  also  liable  for  the  sufficiency  of 
the  securities,^  even  up  to  the  time  they  were  called  upon  to 
make  good  their  obligation.     The  harshness  of  this  rule  has  been 


^Ante,  §  26;  Caldwell  v.  West,  1  Zab.  (21  N.  J.)  420. 

'Pearce  v.  Humphreys,  14  S.  &  R.  (Pa.)  25;  Oxley  v.  Cowperthwaite, 
1  Dall.  350;  Myers  v.  Clark,  3  W.  &  S.  (Pa.)  539.  The  sheriff  was  re- 
quired to  take  security  at  his  peril.    Gibbs  v.  Bull,  18  Johns.  437. 


THE  BOND.  349 

modified  somewhat,'  and  where  one  of  the  securities  is  solvent 
the  fact  that  others  may  have  been  insolvent  does  not  render  the 
officer  liable.*  The  statute  also  provided  that  the  sherilT  might 
assign  the  bond  to  the  avowant,  or  to  tlie  person  making  cogni- 
zance, either  of  whom  might  bring  suit  thereon  in  his  own  name 
if  the  conditions  were  broken.*  This  form  of  proceeding  was  the 
common  practice  in  this  country,  and  still  prevails  in  many  of 
the  States.  In  others  the  bond  is  made  directly  to  the  defendant. 
Upon  this  question  the  statute  of  the  State  wiiere  the  suit  is 
pending  will,  of  course,  govern.  The  statute  17  Car.  2,  Ch.  7,  A. 
D.  1665,  provided  that  when  the  plaintiff  was  defeated  the  avow- 
ant should  have  judgment  against  the  plaintiff  for  the  rent  in 
arrear,  in  case  the  value  of  the  cattle  distrained  amounted  to  so 
much,  or  for  an  amount  equal  tx)  the  value  of  the  goods.  In  case 
the  value  of  tlie  goods  did  not  equal  the  rent,  then  for  the  value 
of  the  goods  with  execution  thereon,  and  the  right  to  distrain 
again  for  any  further  sum  due  for  rent.  Prior  to  the  case  of  Per- 
reaii  v.  Bevan^  5  Barn.  &,  Cress.  284,  it  had  been  a  question  as  to 
whether  the  landlord  who  elected  to  proceed  under  this  statute 
had  any  remedy  upon  the  bond.  Since  that  case,  however,  such 
riglit  has  not  been  .seriously  questioned.  The  Statute  11  George 
II.,  Ch.  19,  A.  D.  1738,  was  held  to  confer  an  additional  remedy, 
and  to  be  in  aid  of  the  proceeding  pointed  out  in  the  Statute  of 
17  Car.  2.'^ 

§  386.  The  English  statute  the  basis  of  the  law  concern- 
ing bond  in  this  country.  The  Statute  11  George  II.,  Ch.  19, 
is  the  basis  upon  whicli  a  large  proportion  of  the  statutes  in  this 
country  are  framed.  Its  provisions  and  the  decisions  under  it 
have  been  the  foundation  on  which  no  inconsiderable  part  of  the 
cases  in  this  country  rest.' 

§387.  Assignment  of  the  bond  to  defendant.  The  usual 
proceeding,  under  that  statute,  and  generally  under  statutes  when 
the  bond  is  to  the;  sheriff,  is  for  tlie  sheriff,  (in  case  llie  bond  is 
forfeited,)  to  assign  it  to  the  defendant  in  the  n-plevin  tiu  t,  who 

•HIndle  v.  Blades,  :>  Taunt.  225. 

•  Ixjrd  r.  Bicknell.  35  Me.  53. 

» Acker  v.  Finn.  5  Hill,  293;  Knapp  i'.  Colhurn.  4  Woiul.  C18.  Seo 
WaplPB  V.  AdklnH.  Admr.  etc.,  5  Har.   (Del.)   381. 

•Consult  Perreau  v.  Bevan.  5  Barn  &  Cress.  2S4,  and  the  casea  there 
cited. 

'Knapp  V.  Colburn.  1   W^-nd.  «;iK 


350  THE    LAW    OF    REPLEVIN. 

may  sue  the  maker  aiul  his  security  in  his  own  name  as  assignee. 
"Without  the  chiuse  authorizing  the  assignment,  the  defendant  was 
driven  to  intricate  proceedings  against  the  sheriff,  or  in  the  name 
of  the  sheriff  against  the  bondsmen.'*  The  taking  of  an  assign- 
ment of  the  bond  from  the  sheriff  is  no  waiver  of  a  right  to  proceed 
subsequently  against  him  for  taking  insufficient  securities,  in  case 
they  should  prove  to  be  so.  A  return  of  mdla  bona  to  an  execution 
upon  a  judgment  against  the  securities  in  a  replevin  bond  is  not 
conclusive  so  as  to  render  the  sheriff  liable.  Proof  of  their 
solvency  or  insolvency  may  be  made  by  the  parties  and  determined 
as  other  issues.*  A  release  of  the  security  is  equivalent  to  a 
release  of  the  sheriff,'"  and  pending  a  suit  upon  the  bond  the  suit 
against  the  sheriff  is  suspended." 

§  388.  The  bond  a  prerequisite.  The  proper  execution  of 
the  bond  in  this  action  is  a  statutory  prerequisite  to  the  delivery 
of  the  property  upon  the  writ.'^  This  was  the  rule  not  only  under 
the  English  law,  but  governs  in  States  where  the  rules  of  the 
English  law  prevail.  The  officer  cannot  deliver  the  property 
without  first  taking  bond.  The  command  of  the  writ,  as  usually 
framed,  is  conditional,  viz. :  "  If  the  plaintiff  shall  give  you 
security,"  etc.  The  prior  execution  of  the  bond  is  as  essential  as 
the  affidavit;  without  it,  the  writ  will  be  quashed,  and  the  judg- 
ment will  order  a  return  of  the  goods  to  the  defendant  with 
damages  for  the  wrongful  taking." 

» Gould  V.  Warner,  3  Wend.  60. 

•Myers  v.  Clark,  3  W.  &  S.  (Pa.)  539. 

'"lb. 

"Commonwealth  v.  Rees,  3  Whart.  (Pa.)  124;  Myers  v.  Clark,  3  W.  & 
S.  (Pa.)  539;  Hallett  v.  Mountstephen,  2  Dowl.  &  Ryl.  343. 

"Pool  V.  Loomis,  5  Ark.  110.  Bond  precedes  the  execution  of  the  writ. 
Luther  v.  Arnold,  7  Rich.  (S.  C.)  397.  Whitney  v.  Jenkinson,  3  Wis. 
407;  Smith  v.  McFall,  18  Wend.  521;  Milliken  v.  Seyle,  6  Hill.  623.  [The 
United  States  is  not  required  to  give  bond,  U.  S.  v.  Bryant,  111  U.  S. 
499,  28  L.  Ed.,  496.] 

"  Bond  must  be  furnished  before  writ  can  be  served.  Kendall  v. 
Fitts,  2  Fost.  (N.  H.)  8;  Greeley  v.  Currier,  39  Me.  518;  Thomas  v.  Spof- 
ford,  46  Me.  408.  Sheriff  liable  in  case  he  fails  to  take  bond  as 
required  by  this  statute.  State  v.  Stephens,  14  Ark.  266;  State  v. 
Boisliniere,  40  Mo.  568;  Harriman  v.  Wilkins,  20  Me.  96;  Kessler  v. 
Haynes,  6  Wend.  547;  Nunn  v.  Goodlett,  5  Eng.  (Ark.)  100.  "  Bond  for 
cost  is  not  sufficient;  it  must  be  in  compliance  with  the  statute,  or 
the  suit  will  be  dismissed."  Creamer  v.  Ford,  1  Heisk.  (Tenn.)  307. 
"  Failing  to  give  bond  works  a  discontinuance."    Weathersby  v.  Sleeper, 


THE  BOND.  351 

§  389.  Permission  to  prosecute  as  a  pauper  does  not 
excuse  giving  bond.  The  action  cannot  be  prosecuted  infortna 
]xu(}M'ris  ;  that  is,  the  taking  of  the  pauper's  oath  will  not  do  away 
with  the  necessity  of  the  bond.  Plaintiflf  may  obtivin  the  services 
of  the  officers  without  cost  by  taking  the  necessary  oath  and 
obtaining  permission  of  the  court,  but  this  will  not  entitle  him  to 
a  seizure  of  the  goods,  nor  justify  the  officer  in  making  such 
seizure,  without  bond.'* 

§  390.  Wealth  of  the  plaintiff  no  excuse.  Neither  will 
the  fact  that  the  plaintiff  is  a  man  of  abundant  means  furnish  an 
excuse  for  not  taking  the  formal  bond,  with  securities  required  by 
the  statute ;  "  nor  will  a  deposit  of  money  answer  in  place  of  the 
bond.'*  The  statutory  bond  being  in  all  cases  indispensable  before 
the  delivery  of  the  property  l)y  the  officer,  he  is  guilty  of  trespass 
if  he  make  the  delivery  without  it,"  and  the  defendant  may  at 
once  bring  suit  against  the  officer,  or  may  elect  to  abide  the  result 
of  the  replevin  suit,  as  he  chooses.'" 

§  391.  Delivery  cannot  be  made  without  bond  given. 
The  officer  may  commence  to  execute  the  writ  before  taking  bond  ; 
that  is,  where  the  statute  requires  an  appraisal,  he  may  have  the 
goods  appraised,  and  for  that  purpose  may  take  the  property,  if 
necessary,  from  tlie  defendant ;  ''•'  but  he  cannot  lawfully  deliver 
it  to  the  plaintifl'  until  he  .shall  first  have  taken  bond  as  the  law 
provides.     When  the  goods  are  so  taken  for  appraisement,  unless 

42  Miss.  738:  Deardorff  v.  Ulraer.  34  Ind.  353;  Graves  v.  Sittig,  5  Wis. 
219.  And  the  judgment  is  for  a  return,  and  damages  follow.  Morris  v. 
Baker,  5  Wis.  389;  Parker  v.  Hall.  55  Me.  364.  "  The  bond  is  as  essential 
as  the  affidavit."  Smith  v.  McKall.  IS  Wend.  521;  Wilson  v.  Williams.  18 
Wend.  581;  Whaling  v.  Shales,  20  Wend.  G73;  Morris  r.  Van  Voast,  19 
Wend.  283;  Graves  v.  Sittig.  5  Wis.  219.  If  the  sheriff  has  taken  the 
property  without  first  taking  bond  with  proper  security,  he  ought  at 
once  to  return  it  to  the  defendant.  State  v.  Stephens.  14  Ark.  204; 
Plranl  v.  Barden.  Pike.  (5  Ark.)  81. 

'•Horton  v.  Vowel,  4   Heisk.   (Tenn.)   022. 

■»  Smith  V.  Trawl,  1  Hoot,  (Conn.)  105;  Harrlman  v.  Wilkina,  20  Me. 
96. 

'•CummingH  v.  Gann,  52  Pa.  St.  488. 

"Dearborn  v.  Kelley,  3  Allen,  (MasB.)  420;  ArniKlrong  r.  lliMrcll,  12 
Wend.   303. 

"Whitney  v.  JenkinBon.  3  Wis.  408;  O'Grady  i-.  KcycH,  1  Alien, 
(.MaHH.)    284. 

"Smith  V.  Whiting,  97  MawH.  310;  Wolcott  v.  .Mead.  12  Met.  (.MaHB.) 
616. 


352  THE    LAW    OF    REPLEVIN. 

the  plaintiff  promptly  executes  the  bond  demanded,  the  sheriff 
ought  to-return  them.™  From  the  cases  cited,  it  is  clear  that  when 
the  sheriff  serves  the  writ  hy  delivering  the  property  without  first 
taking  bond,  or  where  the  bond  taken  is  defective  under  the 
statute,  the  defendant  may  abate  the  writ  on  motion,  and  compel 
a  return  of  the  goods,  or  he  may  regard  the  tnker  as  a  trespasser 
and  recover  damages  as  in  other  cases  of  trespass  to  personal 
property ;  but  he  cannot  have  trespass  with  the  other  actions  for 
the  value  or  for  the  goods.-' 

§  392.  The  bond  must  conform  to  the  statute.  The  bond 
must  conform  to  the  statutory  requirements  in  all  essential  parti- 
culars. It  must  be  in  double  the  value  of  the  property  about  to 
be  replevied,  but  if  it  be  in  excess  of  that  amount  the  fact  will  not 
render  it  defective."  Defects  in  the  form  of  the  bond  may  be 
taken  advantage  of  by  plea  in  abatement  or  by  motion  to  dismiss,'' 
or  the  defendant  may,  if  he  prefer  such  course,  obtain  a  rule  of 
court  upon  the  plaintiff,  requiring  him  to  furnish  a  bond  in  proper 
form.  Defects  in  the  bond  should  be  taken  advantage  of  in  the 
first  instance,  and  such  objection  comes  too  late  after  verdict  and 
judgment."  In  case  the  sheriff  take  bond  in  an  insufficient  amount, 
the  defendant  may  object  and  move  to  dismiss  the  suit,  or  he  may 
have  an  action  against  the  sheriff  for  his  neglect." 

§  393.  The  bond  not  necessary  to  the  trial.  The  bond, 
when  in  form  and  sufficient,  is  not  necessary  to  the  trial ;  the  case 
proceeds  without  reference  to  it.  It  is  only  after  judgment,  and 
a  failure  on  the  part  of  the  plaintiff  to  keep  the  conditions,  that 

-"  state  V.  Stephens,  14  Ark.  264.  The  statute  of  Wisconsin  allows 
the  officer  to  take  the  property  and  hold  it  a  reasonable  time  to  permit 
the  plaintiff  to  give  bond.  Graves  v.  Sittig,  5  Wis.  219.  But  unless 
there  are  statutory  exceptions,  the  officer  cannot  serve  the  writ  until 
the    bond    is    furnished. 

=•  Parker  v.  Hall,  55  Me.  364;  Cady  v.  Eggleston,  11  Mass.  285. 

-Owen  V.  Nail,  6  T.  R.  702  and  339;  Clap  v.  Guild,  8  Mass.  154;  Free- 
man V.  Davis,  7  Mass.  200;  Bugle  v.  Myers,  59  Ind.  73;  Whitney  v.  Jen- 
kinson,  3  Wis.  407;  Smith  v.  McFall,  18  Wend.  521. 

"Houghton  V.  Ware,  113  Mass.  49;  Hicks  v.  Stull,  11  B.  Mon.  53; 
Douglass  V.  Gardner,  63  Me.  462. 

='  Bugle  V.  Myers,  59  Ind.  73. 

**Deardofr  v.  Ulmer,  34  Ind.  353;  O'Grady  v.  Keyes,  1  Allen,  (Mass.) 
284.  So,  when  a  deputy  sheriff,  acting  for  his  superior,  take  insufficient 
security,  the  sheriff  is  responsible.    Harriman  v.  Wilkins,  20  Me.  96. 


THE  BOND.  353 

resort  can  be  had  to  it/*  Its  absence,  tlierefore,  at  the  trial,  would 
in  no  way  affect  the  jurisdiction  or  proceeding  of  the  court."  The 
neglect  of  the  sheriff  to  take  bond  is  not  a  contempt  of  court  for 
which  an  attachment  will  he  issued. •" 

§  394.  Where  the  sheriff  is  a  party.  Where  the  sheriff  is 
interested  in  the  replevin  suit,  the  writ  is  directed  to  the  coroner, 
who  must  take  the  bond.  Tlie  statute  means  that  the  hand  .shall 
be  taken  by  the  officer  Avho  executes  the  writ.**  So  a  bond  to  the 
deputy  sheriff  who  signed  the  return,  when  he  as  such  deputy 
assigned  the  bond  to  the  party,  was  held  suflfioiont  under  a  statute 
which  required  the  bond  to  run  to  the  officer  serving  the  writ, 
designating  hira  as  "  such  officer."  ^° 

§  395.  Defendant  may  give  bond  and  retain  the  property. 
In  many  of  tlie  States,  pruvisions  exist  by  statute,  wliich  allow  the 
defendant  claiming  the  property  a  reasonable  time  within  which 
to  give  bond  to  the  plaintiff,  and  by  so  doing  he  has  the  right  to 
retain  possession  of  the  goods  pending  the  suit.  In  such  case  no 
liability  attaches  to  the  makers  of  the  plaintiff's  bond. 

=*Tuck  V.  Moses,  58  Me.  463;   Pirani  v.  Harden,  5  Ark.  81. 

'^  Tripp  V.  Howe,  45  Vt.  524;  Kesler  v.  Haynes,  6  Wend.  (N.  Y.)  547. 

''Rex  V.  Lewis,  2  Term.  R.  617;  Twells  v.  Coldville,  Willes,  375. 

=*  Speer  v.  Skinner,  35  111.  284. 

"Wheeler  v.  Wilkins,  19  Mich.  80. 

Note  XXIII.  Who  may  Retain  the  Goods  under  Forthcoming  Bond: — 
Where  several  are  named  defendants,  either  of  them  having  possession 
of  the  chattels  may,  where  retention  is  allowed  by  this  means,  give 
the  bond  and  retain  the  goods,  Rich  v.  Lowenthal,  99  Ala.  488,  13  So. 
220.  Doubted  if  the  defendants  not  in  possession  can  avail  of  the 
statute.  Id.  The  defendant  may  give  forthcoming  bond  without  con- 
necting himself  with  a  third  person  who  is  entitled  to  the  goods,  l.ange 
V.  Lewi.  58  N.  Y.  Sup.  Ct.  265.  11   N.  Y.  Sup.  202. 

iJefendant's  Right  to  Retain  the  Coods: — Failure  of  the  ofTl<er  to  cause 
an  appralsment  within  the  period  allowed  to  defendant  to  give  the 
bond.  Is  no  ground  to  quash  the  writ;  defendant  may  on  motion,  not- 
withstanding the  officer's  delinquoncy,  have  the  property  restored  to 
him  upon  executing  the  bond;  and,  moreover,  may  have  hj8  action 
against  the  officer.  Parlin  v.  Austin,  3  C'olo.  3:57;  Kobifison  t).  AuHtin,  3 
Colo.   375. 

F.TCixttion  and  Frame  of  the  Bond: — If  the  property,  return  of  which 
is  nought.  Ih  not  In  fact  that  doscrlbed  In  th««  affidavit  In  r«'plcvln, 
defendant  Ih  not  required  to  aHH«'rt  thiH  In  hlH  bond,  Rouhc  v.  Wiuvh,  26 
Ap.  1)1  v.  171.  49  N.  Y.  Sup.  867.  In  another  caHO  it  Ih  Hald  that  a 
counter-bond  Ih.  In  Huch  cane,  void.  KllnkowHtein  v.  QrecDborR,  ir> 
23 


354  THE    LAW    OF    REPLEVIN. 

Misc.  479,  37  N.  Y.  Sup.  206.  One  who  affixes  his  mark  by  way  of  sub- 
scription is  bound,  Terry  v.  Johnson,  22  Ky.  L.  Rep.  1210,  60  S.  W.  300. 
The  bond  need  not  be  signed  in  the  presence  of  the  officer,  Id.  The 
signature  of  the  principal  is  not  required  where  the  statute  merely 
requires  that  the  bond  be  "  executed  by  sufficient  sureties,"  Polite  v. 
Bero.  63  S.  C.  209,  41  S.  E.  305.  The  bond  may  be  effectual  though  no 
penalty  be  inserted,  Holmes  v.  Langston.  110  Ga.  861,  36  S.  E.  251.  A 
bond  executed  by  "  N.  R.  E.  attorney  for  R.  &  Co."  N.  R.  B.,  is  princi- 
pal, is  personally  liable  as  such,  and  bound  to  indemnify  the  surety. 
The  recitation  of  his  attorneyship  affects  nothing.  Hayes  v.  Bronson, 
Conn.  61  Atl.  549. 

Duty  and  Liability  of  the  Officer: — If  the  officer  fail  to  cause  an  ap- 
praisement to  be  made  within  the  time  required  by  the  statute,  he  is 
liable  to  an  action  by  the  defendant.  Parlin  v.  Austin,  3  Colo.  337.  If 
the  sureties  are  sufficient  when  accepted,  their  credit  good,  and  in- 
solvency improbable,  the  officer  has  performed  his  duty,  Watterson  u. 
Fuellhart,  169  Pa.  St.  612,  32  Atl.  597. 

Construction  of  the  Bond: — If  the  bond  omit  the  provision  that  "  de- 
fendant shall  abide  the  judgment  of  the  court,"  but  contain  the  condi- 
tion that  "  if  the  defendant  shall  make  good  his  claim,"  etc.,  the 
omission  is  unimportant,  and  the  liability  of  the  sureties  the  same  as 
if  the  condition  omitted  had  been  inserted,  Watterson  v.  Fuellhart, 
supra.  Statute  requiring  the  forthcoming  bond  to  be  conditioned  "  to 
answer  such  judgment  as  may  be  rendered  in  the  cause  "  and  provid- 
ing that  the  sureties  "  shall  be  bound  for  the  judgment  of  the  eventual 
condemnation  money,"  is  sufficiently  complied  with  by  a  bond  condi- 
tioned "  to  deliver  to  the  said  plaintiffs  .  .  .  the  notes  described  in 
their  petition  ...  or  produce  the  same  to  answer  any  judgment  that 
may  be  entered  in  the  said  cause  or  pay  the  eventual  condemnation 
money,"  Holmes  r.  Langston,  supra.  The  condition  of  the  bond  was  to 
deliver  the  goods  to  the  plaintiff  "  if  the  same  be  adjudged  to  the  plain- 
tiff; "  but  the  statute  did  not  permit  this  judgment  in  favor  of  the  plain- 
tiff, but  only  a  judgment  for  the  value;  therefore,  inasmuch  as  to 
interpret  the  statute  as  requiring  such  a  judgment  as  a  condition  pre- 
cedent, would  render  the  bond  nugatory,  the  court  concluded  that  the 
surety  must  be  held  liable  for  the  return  of  the  goods,  and  might  dis- 
charge himself  by  an  offer  to  return  them  in  as  good  condition  as  when 
replevied,  Johnson  v.  Mason,  64  N.  J.  L.  258,  45  Atl.  618.  The  condition 
of  the  bond  was  to  have  the  goods  attached  forthcoming  to  answer  any 
judgment  which  might  be  rendered;  but  judgment  had  already  been 
rendered.  Held,  the  sureties'  liability  already  accrued,  and  they  were 
liable  at  once.  Ward  v.  Hood,  124  Ala.  570,  27  So.  245.  The  surety 
is  liable  only  according  to  his  contract  as  set  out  in  the  bond,  Johnson  v. 
Mason,  supra;  Gerlaugh  v.  Ryan,  Iowa,  103  N.  W.  128.  The  surety  can- 
not be  charged  in  an  action  of  assumpsit  for  money  had  and  received 
except  upon  proof  that  the  surety  received  the  proceeds  of  the  goods, 
Ward  V.  Hood,  supra. 

Effect  of  the  Bond. — When  two  are  made  defendants,  the  execution 


THE  BOND.  355 

of  the  bond  by  both  will  not  estop  one  of  them  from  asserting  his 
own  separate  title  to  the  goods  or  denying  the  title  of  the  plaintiff, 
Strahorn  v.  Heffner,  Ark.  85  S.  W.  784. 

Amendment  of  the  Bond: — Defendant,  who  has  given  a  forthcoming 
bond  admitting  receipt  of  the  goods,  will  not  be  allowed  to  file  a  new 
bond  retracting  this  admission,  Dale  v.  Gilbert,  59  Hun,  615,  12  N.  Y. 
Sup.  370. 

Pleadings: — The  complaint  upon  the  forth-coming  bond  need  not 
adopt  the  allegation  of  the  code  that  the  judgment  in  replevin  was 
"  duly  rendered,"  but  may  aver  the  facts.  Terry  v.  Johnson,  22  Ky.  L. 
Rep.  11:10,  60  S.  W.  300.  The  allegation  that  the  judgment  remains  in 
full  force  and  effect,  is  suflBcient  to  show  a  breach  of  the  forth-coming 
bond.  Id.  The  complaint  must  aver  that  the  goods  were  delivered  to 
the  defendant  in  replevin,  Nickerson  v.  Chatterton,  7  Calif.  568. 

Liability  and  Rights  of  Surety.  Defenses: — The  surety  in  the  forth- 
coming bond  is  entitled  to  come  in  and  defend  the  replevin  In  order 
to  protect  himself,  Boessneck  v.  Bab,  27  Misc.  379,  58  N.  Y.  Sup.  849. 
Where  the  condition  is  "  that  defendant  shall  defend,  etc.,  and  deliver 
the  property  to  the  plaintiff  if  he  recover  judgment  therefor  in  as  good 
condition  as  when  said  action  was  commenced,"  plaintiff  is  not  en- 
titled to  judgment  against  the  sureties  for  the  value,  where  they 
tender  the  property,  in  compliance  with  this  condition.  Gerlaugh  v. 
Ryan,  la.  103  N.  W.  128.  A  forthcoming  bond  was  conditioned  to  per- 
form the  judgment  in  the  action;  plaintiff  recovered,  but  the  judgment 
was  reversed  upon  appeal;  the  cause  being  remanded,  the  plaintiff  dis- 
missed his  action.  The  sureties  in  forthcoming  bond  are  not  liable 
for  the  costs  of  the  appeal.    Spencer  v.  Davidson,  Ind.  Ter.  82  S.  W.  731. 

Defects  in  Bond. — An  omission  from  the  bond  of  certain  articles  of 
those  sued  for,  or  the  insertion  therein  of  things  not  sued  for,  does  not 
affect  its  validity.  Rich  v.  Lowenthal,  99  Ala.  488,  13  So.  220;  nor  does 
the  circumstance  that  the  bond  was  not  signed  In  presence  of  the  officer 
or  attested  by  him.  Terry  v.  .Johnson,  22  Ky.  L.  Rep.  1210,  60  S.  W.  300. 

Irregularities  in  the  Replevin. — Plaintiff  in  the  replevin  and  the 
sureties  will  not  be  permitted  to  question  the  regularity  of  the  pro- 
ceedings in  the  replevin  suit,  McFadden  v.  Fritz.  110  Ind.  1,  10  N.  E. 
120;  nor  In  the  return  of  the  bond.  Jones  r.  Findley.  84  Ga.  52,  10  S.  E. 
541;  nor  that  the  bond  was  not  approved  by  the  sheriff;  the  mere 
acceptance  of  the  bond  and  delivery  of  the  goods  to  defendant,  consti- 
tutes an  approval,  Hartlep  v.  Cole,  120  Ind.  247,  22  N.  E.  130;  nor  can 
defendants  raise  any  question  as  to  whether  the  writ  in  replevin  was 
dlrectf'd  to  the  officer  at  request  of  the  plaintiff  therein,  Terry  v.  John- 
son. 22  Ky.  L.  R«'p.  1210.  f.O  S.  W.  300;  nor  allege  that  the  offlcer  before 
executing  the  writ  had  not  taken  bond  from  the  plaintiff.  Id. — nor  th.it 
no  execution  IsKued  upon  the  Judgmmt  of  rctomn,  Unrllcp  i'.  Colo,  120 
Ind.  247,  22  N.  E.  130;  nor  that  the  sheriff  might  have  taken  the  goodH 
on  execution.  It  l8  the  duty  of  the  surety  to  put  the  plaintiff  In  pohboh- 
Blon,  Arthur  i'.  Sherman.  11  Wash.  254.  39  Pac.  670.  Tho  suretleB  are 
bound   for  the  dcllviry  of  the  identical  goods,   Union  Stove  Works  r. 


356  THE    LAW    OF    REPLEVIN. 

Breidenstein.  50  Kans.  53,  31  Pac.  703;  McRae  v.  Kansas  City  Co.,  69 
Kans.  457,  77  Pac.  94.  But  they  are  not  bound  for  the  return  of  the 
goods  not  demanded  in  the  replevin.  Rich  v.  Lowenthal,  99  Ala.  488, 
13  So.  220.  If  the  plaintiff  accept  other  goods  in  lieu  of  those  adjudged 
to  him,  in  satisfaction  of  the  bond,  this  is  a  discharge.  Union  Stove 
Works  V.  Breidenstein,  supra.  Where  the  goods  are  valued  separately 
in  the  bond,  a  return  of  any  of  them  is  a  satisfaction  of  the  bond  pro 
tanto,  and  to  the  amount  therein  set  down  as  the  value  of  such  goods, 
Larabee  v.  Cook,  8  Kans.  Ap.  776,  61  Pac.  815.  That  the  suit  was  com- 
promised and  judgment  entered  by  confession  for  damages,  without 
the  knowledge  of  the  sureties,  is  no  defense.  Bradford  ?'.  Frederick, 
101  Pa.  St.  445.  The  surety  is  bound  by  a  verdict  given  by  consent  if 
there  was  no  legal  ground  to  resist  it,  .Tones  v.  Findley,  84  Ga.  52,  10 
S.  E.  541.  The  bond  estops  the  parties  thereto  to  deny  possession  of 
the  goods  at  the  institution  of  the  action,  Nye  v.  Weiss,  7  Kans.  Ap.  627, 
53  Pac.  152;  and  estops  them  to  deny  the  return  of  the  goods  by  the 
sheriff,  to  the  defendant  in  replevin,  Martin  v.  Gilbert,  119  N.  Y.  298, 
23  N.  E.  813,  24  N.  E.  460.  An  answer  by  the  sureties  in  a  forthcoming 
bond  that  the  principal  obligee  was  solvent  at  the  time  of  the  giving 
of  the  bond,  and  so  continued  for  a  time  reasonably  sufficient  to  enable 
plaintiff  in  replevin  to  recover  judgment,  but  that  plaintiff  wrongfully 
delayed  the  prosecution  of  that  suit  for  an  unreasonable  time,  and  by 
a  "  valid  agreement "  with  the  principal  obligor,  without  cause,  and 
in  furtherance  of  their  fraudulent  purpose  (to  charge  the  sureties 
with  the  value  of  the  goods),  the  action  was  continued  for  long  and 
definite  periods,  and  during  such  delay  the  principal  obligor  became 
embarrassed  and  the  property  wasted  and  lost.  Held  that  inasmuch  as 
it  failed  to  set  forth  any  consideration  for  the  alleged  agreement  or 
that  any  order  of  the  court  was  ever  made  continuing  the  cause,  the 
plea  was  bad.  Smith  v.  Stubbs,  16  Colo.  Ap.  130,  63  Pac.  955.  The  fact 
that  the  property  which  the  defendant  retained  by  giving  the  bond, 
belongs  to  others,  is  no  ground  to  refuse  judgment  upon  the  bond,  to  the 
successful  plaintiff,  Staples  v.  Word,  Tex.  Civ.  Ap.  48  S.  W.  751.  That 
defendants  executed  the  forthcoming  bond  at  request  of  one  of  three 
defendants  in  the  replevin,  who  was  then  in  sole  possession  of  the 
goods,  and  as  to  whom  this  suit  was  afterwards  discontinued,  and 
judgment  for  return  entered  against  the  others,  is  no  plea,  because  in 
contradiction  of  the  recitals  of  the  bond;  the  sureties  are  bound  for 
the  conduct  of  each  and  all  of  the  defendants,  Auerbach  v.  Marks,  10 
Daly  171.  But  in  Tyler  v.  Davis,  63  Miss.  345,  where  the  replevin  was 
against  two,  and  both  gave  the  forthcoming  bond,  and  plaintiff  dis- 
continued as  against  one,  it  was  held  that  sureties  were  discharged; 
their  agreement  was  to  respond  to  any  judgment  entered  in  the  suit 
in  which  the  two  were  parties.  The  judgment  is  conclusive  as  to  all 
matters  which  might,  with  reasonable  diligence  have  been  litigated 
therein,  Boyd  v.  Huffaker,  40  Kans.  634,  20  Pac.  459.  And  where  the 
judgment  in  replevin  assumes  to  determine  the  ownership,  it  will  be 
presumed,  the  contrary  not  appearing,  that  it  was  in  issue.    McFadden. 


THE  BOND.  357 

V.  Fritz,  110  Ind.  1,  10  N.  E.  120.  And  the  sureties  are  concluded  by 
the  judgment  in  replevin  as  to  all  questions  litigated  in  that  suit.  Id. 
An  injunction  obtained  by  a  stranger  after  breach  of  the  bond  by  fail- 
ure to  return  the  goods,  is  not  a  defense,  Arthur  v.  Sherman,  11  Wash. 
254,  39  Pac.  670.  Nor  is  the  destruction  of  the  goods  while  in  defend- 
ant's possession,  though  without  his  fault,  George  v.  Hewlett,  70  Miss. 
1,  12  So.  855;  Hazlett  v.  Witherspoon,  Miss.  25  So.  150;  Hinkson  v. 
Morrison,  47  la.  167.  That  defendant  in  replevin  has  been  required 
to  surrender  the  goods  to  a  receiver  appointed  in  an  action  to  which 
the  plaintiff  was  not  a  party,  does  not  discharge  the  forthcoming  bond; 
plaintiff  is  not  compelled  to  pursue  the  receiver.  Cohen  v.  Adams,  13 
Tex.  Civ.  Ap.  118,  35  S.  W.  303.  Plaintiff  in  replevin  tendered  the  goods 
and  defendant  filed  a  conditional  acceptance;  plaintiff  then  asked  leave 
to  withdraw  his  tender.  The  court's  denial  of  the  leave  asked  did  not 
discharge  the  sureties.  Eickoff  v.  Eikenbary,  52  Neb.  332;  72  N.  W. 
308.  But  an  offer  to  return,  not  made  in  good  faith,  but  merely  to  lay 
the  foundation  of  future  litigation  or  defense,  is  nothing.  Id.  Plaintiff 
in  replevin  prevailed  and  obtained  judgment  for  the  value  of  the  goods. 
He  afterwards  pleaded  this  judgment  in  set-off  to  an  action  of  assump- 
sit by  the  defendant  in  replevin,  and  obtained  judgment  for  a  balance. 
In  an  action  on  the  forthcoming  bond  the  sureties  were  permitted 
to  show  this;  but  plaintiff  was  allowed  to  recover  against  them  the 
balance  allowed  him  upon  the  plea  of  set-off,  Jennings  v.  Hare,  104  Pa. 
St.  489.  Where  the  condition  of  the  bond  is  to  perform  the  judgment, 
the  mere  return  of  the  goods  is  not  a  satisfaction,  if  costs  were  also 
awarded,  Morrill  v.  Daniel,  47  Ark.  316,  1  S.  W.  702.  Where  the  bond 
is  conditioned  to  pay  all  costs  and  deliver  the  goods  to  the  plaintiff. 
If  return  shall  be  awarded,  and  pay  all  damages  that  may  accrue  to 
the  plaintiff  by  reason  of  the  unlawful  detention  of  the  goods,  there  can 
be  no  recovery  for  non-return  of  the  goods  if  return  was  not  awarded, 
nor  damages  for  the  detention;  because  in  such  case  the  detention  is 
not  unlawful,  Colorado  Springs  Co.  v.  Hopkins,  5  Colo.  206;  Nickerson  v. 
Chatterton,  7  Calif.  568.  And  where  the  law  requires  an  alternative 
judgment  for  the  goods,  or  their  value,  the  sureties  are  not  liable  where 
the  judgment  is  for  restitution  merely,  Nickerson  v.  Chatterton,  supra. 
The  liability  of  the  sureties  in  the  forthcoming  bond  does  not  become 
fixed,  so  long  as  a  perfected  appeal  from  the  judgment  In  favor  of  plain- 
tiff in  replevin,  is  pending.  Corn  Exchange  Rank  v.  Blye,  102  N.  Y.  306, 
7  .v.  E.  49.  But  the  appeal  does  not  release  the  sureties.  Swartz  r.  Eng- 
li.sh,  4  Kans.  Ap.  509.  44  Pac  1004.  The  sureties  In  the  forthcoming 
bond  are  liable  only  for  the  value  of  the  goods  at  the  time  of  the 
K»i'/uro,  not  excofding  the  mortgage  debt  for  which  they  were  replevied, 
Griffith  V.  Richmond,  126  .N.  C.  377.  35  S.  E.  620.  Whore  It  appears  that 
defendants  purchased  the  goods  of  the  plaintiff,  the  measure  of  recovery 
Is  the  purchase  price,  with  interest,  less  all  payments  which  have  been 
made  on  account,  with  IntcreKt;  such  recovery  Is  wltliln  the  condition 
of  the  bonrl  that  "  plaintiff  shall  be  iiald  bu<Ii  sum  as  Khali  for  an.v 
cause  be  recovered  auainHt  the  defendants."  Hull  v.  Tillman,  IIG  N.  C. 
500,   20  H.   K.   726. 


358  THE-  LAW    OF    REPLEVIN. 

§  896.  Bond  not  necessary  where  the  plaintiff  does  not 
ask  delivery.  Statutes  also  exist  in  many  States,  by  which  the 
plaintiff  may  have  the  writ  without  the  command  to  deliver  the 
goods.  In  such  case  the  property  remains  in  the  defendant's 
possession  during  the  suit,  and  a  delivery  to  plaintiff  only  follows 
a  judgment  of  the  court  in  his  favor  ;  consequently,  in  such  case 
no  bond  is  required.'' 

§  397.  Description  of  the  bond.  The  bond,  in  modern 
practice,  is  an  obligation  for  the  payment  of  the  sum  named 
therein,  upon  certain  conditions.  The  principal  conditions  are, 
that  the  plaintiff  shall  prosecute  his  suit  with  effect  and  without 
delay,  or  in  case  of  failure  to  do  so,  shall  make  return  of  the  goods, 
(if  return  be  awarded,)  and  shall  pay  such  damages  as  shall  be 
awarded  in  case  of  failure  to  do  so — in  some  States  a  condition  is 
inserted  that  the  party  shall  save  and  keep  harmless  the  sheriff, 
in  making  the  replevin — with  a  proviso  that  if  the  conditions  are 
kept  and  fulfilled,  the  obligation  shall  be  void. 

§  398.  Objects  and  purposes  of  the  bond.  Originally  the 
bond  was  designed  to  furnish  indemnity  to  the  sheriff  in  taking 
the  goods  from  the  defendant.'^  In  modern  practice  the  bond  is 
not  only  to  indemnify  the  officer,  but  it  is  looked  upon  as  furnishing 
additional  security  to  the  defendant  as  well,  in  case  the  action  is 
not  sustained  ;  ^'  the  object  of  the  bond  being  to  compel  the 
plaintiff  to  prosecute  his  suit  with  effect  and  without  delay,  and 


"  [Varner  v.  Bowling.  54  Kans.  380,  38  Pac.  481;  McGuire  v.  Galligan, 
57  Mich.  38,  23  N.  W.  479;  Dillard  v.  Samuels,  25  S.  C.  319;  Benjamin  v. 
Smith,  43  Minn.  146,  44  N.  W.  1083;  Simpson  Co.  v.  Marshal,  5  S.  D.  528, 
59  N.  W.  728;  Cook  v.  Hamilton,  67  la.  394,  25  N.  W.  676.  The  action 
in  such  case  is  essentially  an  action  to  recover  the  value,  and  is  con- 
trolled by  the  same  principles  as  the  action  of  trover,  McArthur  v. 
Oliver,  60  Mich.  605,  27  N.  W.  689;  Hudelson  v.  First  National  Bank,  56 
Neb.  247,  76  N.  W.  570;  Philleo  v.  McDonald.  27  Neb.  142.  42  N.  W.  904. 
But  in  Minnesota  it  is  optional  with  the  plaintiff  to  claim  delivery  at 
any  time  before  answer,  or  only  upon  final  judgment;  the  election  to 
waive  immediate  delivery  does  not  convert  the  action  into  trover, 
Benjamin  v.  Smith,  43  Minn.  146,  44  N.  W.  1083.] 

'^  Armstrong  v.  Burrell,  12  Wend.  302;  Gordon  v.  Williamson,  1  Spence, 
(20  N.  J.)  81;  Barry  v.  Sinclair,  Phill.  (N.  C.)  7. 

"Langdoc  v.  Parkinson,  2  Bradw.  (111.)  138;  Petrle  v.  Fisher,  43  111. 
443;  Fahnestock  v.  Gilham,  77  111.  637;  Nunn  v.  Goodlett,  5  Eng.  (Ark.) 
100;  Smith  v.  Whiting,  97  Mass.  316;  Doogan  v.  Tyson,  6  Gill.  &  J. 
(Md.)   453. 


THE  BOND.  359 

in  case  of  failure  to  return  the  goods,  if  return  be  awarded  ;"  or, 
to  furnish  the  defendant  with  a  sufficient  indemnity  in  case  its 
conditions  are  not  complied  with." 

§  399.  The  return  of  the  bond  with  the  writ.  The  sheriff 
is  required  to  return  the  bond  with  the  writ,  so  that  the  defendant 
may  inspect  it,  and  object  to  its  form  or  sufficiency,  or  to  the 
solvency  of  the  securities.  In  some  States  this  is  a  statutory 
provision,  in  others  a  rule  of  practice.'"  Upon  the  return  of  the 
bond  to  the  court,  the  defendant  may  file  exceptions  to  its  form, 
or  to  the  sufficiency  of  the  securities.  In  case  the  exceptions  are 
sustained,  plaintiff  may  be  required  to  furnish  a  good  bond,  and 
if  he  neglect  to  do  so,  his  suit  may  be  dismissed  and  a  return  of 
the  property  awarded." 

"  Badlam  v.  Tucker,  1  Pick.  287. 

''Belt  V.  Worthington.  3  Gill.  &  J.  (Md.)  247;  Doogan  v.  Tyson.  6 
Gill.  &  J.  (Md.)   453. 

"Petrie  v.  Fisher,  43  111.  443;  Nunn  v.  Goodlett,  5  Eng.   (Ark.)  100. 

"  Allen  V.  Judson,  71  X.  Y.  77.  [The  "  twenty-four  hours,"  given  by 
statute  will  not  be  construed  as  allowing  one  day.  It  begins  at  the 
end  of  the  twenty-four  hours  allowed  to  the  plaintiff  from  the  taking 
of  the  goods,  to  give  his  bond, — even  though  the  plaintiff's  bond  is 
given  before  the  expiration  of  the  twenty-four  hours  so  allowed  to 
him.  Barton  v.  Shull,  Neb.  97  X.  W.  292;— but  if  defendant  was  in- 
duced not  to  take  exceptions  to  the  sureties  in  the  bond  by  the  fraud 
of  the  plaintiff,  he  may  assail  their  sufficiency  in  an  action  against 
the  officer,  Id.  But  he  is  not  at  liberty  to  assail  the  motives  of  the 
officer  in  accepting  them  unless  his  exception  is  prevented  fraudulently. 
Id.  If  the  action  is  turned  into  trover,  pursuant  to  the  statute,  the 
defendant  will  not  be  permitted  to  question  the  sufficiency  of  the  surety, 
Reno  V.  Woodyatt,  81  Ills.  Ap.  553.  An  exception  after  the  time  specified 
in  the  statute  is  without  avail,  Spencer  v.  Bell,  109  N.  C.  39,  13  S.  E.  704. 
The  statute  providing  that  when  the  defendant  excepts,  "  the  surety 
shall  justify  upon  one  day's  notice,  and  the  officer  shall  be  responsible 
until  they  justify  or  until  new  sureties  be  substituti'd  and  they  justify," 
If  the  sureties  fall  to  justify  they  are  at  once  exonerated,  and  It  Is 
the  duty  of  the  officer  to  return  the  goods,  Rlnear  i'.  Skinner,  20  Wash. 
541,  56  Pac.  24.  But  It  seems  this  would  not  be  so  If  the  plaintiff 
offer  other  sufficient  sureties.  In  New  York  the  sureties  are  liable 
though  they  fall  to  justify,  and  the  constable  also  Is  liable  to  defendant 
for  the  return  of  the  goods  If  he  secures  a  Jiidgment  for  return.  Webb  t'. 
Hecox.  58  N.  Y.  Sup.  382.  The  statute  providing  that  "  the  Buretles 
must  justify  or  the  plalntirr  must  give  a  new  undertaking,"  makes  It 
the  duty  of  the  plainllff  to  see  to  It  that  the  Kuntles  j\iHtlfy;  but  If  the 
sureties  attend  before  the  Justice  of  the  peare  to  justify,  and  dift-nd- 


360  THE    LAW    OF    REPLEVIN. 

§  400.  Amount  of  penalty  in  the  bond.  The  mode  of  ascer- 
taining tlie  value  of  the  property  as  a  basi.s  for  fixing  the  penalty 
to  be  inserted  in  the  bond,  varies  in  different  States.  By  the 
English  law  the  sheriff  was  required  to  take  bond  in  double  the 
value  of  the  property,  and  also  to  see  that  the  bond  was  sufficient 
not  only  in  respect  to  the  solvency  of  the  security,  but  in  the 
amount  for  which  it  was  taken.  In  States  where  the  law  does 
not  require  an  appraisement,  the  practice  has  become  general  to 
accept  the  statement  in  the  affidavit  as  the  value  of  the  property  ; 
and  the  officer  is  usually  governed  by  it.  In  some  States  this  is  a 
statutory  provision,"  in  others  a  rule  adopted  by  general  consent. 
The  sheriff,  however,  unless  the  statute  requires  it,  is  not  bound 
by  the  value  stated  in  the  affidavit.  Where  there  is  no  statutory 
method  provided  for  fixing  that  value,  as  by  appraisement  or 
otherwise,  it  is  his  duty  to  see  that  the  penalty  in  the  bond  is 
large  enough,  up  to  double  the  value,  to  fully  indemnify  him  in 
making  the  replevin,  and  to  protect  the  defendant  from  loss.^'  In 
other  States  the  statute  requires  that  the  property  shall  be  ap- 
praised by  disinterested  parties,  who  fix  the  value  after  an  inspec- 
tion. In  such  case  the  amount  of  the  bond  is  based  upon  the 
amount  of  such  appraisement.*"  The  parties  may  agree  and  so  fix 
the  value,  and  that  will  be  sufficient  and  l^inding  on  both.*' 

§  401.  Sheriff  may  take  the  property  for  purpose  of  ap- 
praisement. Although  the  officer  has  no  right  to  deliver  the 
property  to  plaintiff  until  the  bond  is  executed  and  delivered  to 
him,  yet,  for  the  purposes  of  appraisement,  he  may  take  the  prop- 
erty into  his  possession,*-  and  upon  that  being  done,  if  the  bond  is 

ant  is  advised  of  it  and  makes  no  request  that  they  justify,  and  pro- 
ceeds to  trial,   this   is   a  waiver  of  the  justification,  Id.'\ 

^■•Deardoff  v.  Ulmer,  34  Ind.  33.3;  See  Pomeroy  v.  Timper,  8  Allen, 
401. 

=»  Murdoch  v.  Will,  1  Dall.  341;  Kimball  v.  True,  34  Me.  88;  Plunket  v. 
Moore,  4  Har.  '(Del.)  379;  Jeffery  v.  Bastard,  4  Adol.  &  823;  Roach 
V.  Moulton,  1  Chand.  (Wis.)  187;  Thomas  v.  Spofford,  46  Me.  408; 
Gibbs  V.  Bull,  18  Johns.  435;  Harriman  v.  Wilkins,  20  Me.  93;  People, 
etc.,  V.  Core,  85  111.  248. 

"Look  at  Aulick  v.  Adams,  12  B.  Men.  104. 

"  Wolcott  V.  Mead,  12  Met.  516. 

"  Smith  V.  Whiting,  97  Mtiss.  316.  [The  officer  in  determining  the 
value  of  the  goods  acts  for  both  parties  and  must  avail  himself  of  the 
best  means  at  hand  for  forming  a  judgment;  his  good  faith  does  not 
avail  him  if  he  fails  in  this,  People  v.  Core,  85  Ills.  248;  Shull  v.  Barton, 


THE  BOND.  361 

not  promptly  forthcoming,  the  sheriff  must  return  the  goods  to 
the  defendant.*^ 

"  State  V.  Stephens.  14  Ark.  264;  Smith  v.  Whiting,  97  Mass.  316;  Wol- 
cott  V.  Mead,  12  Met.   (Mass.)   516. 

56  Neb.  716,  77  N.  W.  132.  If  the  goods  are  contained  in  boxes  he  may 
open  them  and  cause  an  appraisement  to  be  made  by  indifferent  parties; 
it  is  his  duty  to  see  to  it  that  the  bond  is  not  given  at  an  insufficient 
valuation.  Hall  r.  Monroe,  73  Me.  123.  He  may  require  the  surety 
offered  to  schedule  his  assets  and  liabilities,  and  with  this  in  his  hand 
examine  the  public  records;  he  should  make  such  inquiry  and  investiga- 
tion as  a  reasonably  prudent  man  would  make;  he  is  not  governed  by 
the  plaintiff's  affidavit  as  to  the  value.  Id.  In  Watterson  v.  Fuellhart, 
169  Pa.  St.  612,  32  Atl.  597,  it  is  said  the  officer  is  absolutely  liable 
that  the  surety  shall  be  responsible  at  the  entry  of  judgment  in 
the  replevin  suit,  but  the  court  exclaimed  against  the  hardship  of 
the  rule;  and  see  contra.  Larney  v.  The  People,  82  His.  Ap.  564;  Busih 
V.  Moline  Co.,  52  Neb.  83,  71  N.  W.  947;  Robinson  v.  The  people,  8  Ills. 
Ap.  279.  People  v.  Robinson,  89  Ills.  159.  If  the  surety  is  solvent 
and  sufficient  when  the  bond  is  approved,  the  officer  is  not  liable  by 
reason  of  his  subsequent  insolvency,  Shull  v.  Barton,  supra;  People  v. 
Robinson,  supra.  If  the  officer  executes  the  writ  without  accepting  a 
bond  with  sureties  where  the  statute  requires  sureties,  he  is  a  trespasser. 
Wilson  r.  Williams,  52  Ark.  360,  12  S.  W.  780;  McKinstry  t'.  Collins.  76 
Vt.  221,  56  Atl.  985; — so  if  he  takes  a  bond  with  only  one  surety  when 
the  statute  requires  "sureties,"  Greely  v.  Currier,  39  Me.  516. 

Until  bond  is  taken  the  officer  has  no  protection  from  his  precept, 
Bettinson  v.  Lowery,  86  Me.  218,  29  Atl.  1003.  But  the  sheriff  does  not 
become  a  trespasser  by  taking  an  insufficient  bond;  the  remedy  is  not 
trespass  but  a  special  action  on  the  case,  Gilbert  v.  Buffalo  Bill  Co.. 
70  Ills.  Ap.  326.  And  the  officer  having  taken  a  sufficient  bond  is  liable 
if  he  fails  to  return  it,  when  this  is  required  by  the  statute.  People  i'. 
Robinson,  89  Ills.  159.  The  injured  party  has  his  action  against  the 
sheriff  and  the  sureties  in  his  official  bond  without  the  aid  of  any 
statute.  Id.  He  recovers  whatever  damages  are  sustained  by  the  fail- 
ure, Id.  An  Imperfect  bond  rejected  by  the  officer,  but  returned  with 
his  writ,  docs  not  render  him  liable,  If,  before  executing  the  writ,  he 
obtains  a  sufficient  bond,  which  is  also  returned.  Roderick  v.  The  People, 
81  Ills.  Ap.  121.  If  the  suretlf's  become  insufflc  icnt  the  cojirt  may  re- 
quire new  bond,  and  If  the  plaintiff  fall  to  comjjly  with  the  order,  direct 
return  of  the  goods  to  the  defendant.  Varner  v.  Howling.  54  Kans.  380. 
38  Par.  481: — but  the  attlon  Is  not  discontinued  by  such  default  of 
the  plaintiff;  he  may  still  proceed  and  secure  a  determination  of  his 
right,  Id  In  Shull  v.  Barton,  56  Neb.  716.  77  N.  W.  132.  It  was  held 
that  the  sheriff  from  whom  personalty  taken  l)y  him  under  execution 
haH  been  replevied  by  the  coroner,  1h  not  a  proper  plaintiff  In  an  action 
.against  the  coroner   for  taking  an    InHUfflcUiil   bond.     Tlio  creditor   Ih 


362  THE    LAW    OF    REPLEVIN. 

§  402.  Sheriff  not  required  to  prepare  bond  ;  duty  of  the 
party.  The  duty  impDsed  upon  the  slit'iill'  to  take  the  bond  does 
not  require  hiiu  to  denuuid  it  from  the  phiintiff  nor  to  prepare  it 
to  be  executed.  Tlie  obligation  to  "  take  bond,"  means  that  he 
must,  wlien  a  sufficient  bond  is  tendered  liiin  by  the  plaintiff  or 
liis  attorney,  accept  it  and  execute  the  writ.'*  A  delivery  of  the 
bond  properly  executed,  to  the  sheriff,  is  a  sufficient  delivery  for 
all  purposes.** 

§  408.  To  whom  payable.  The  common  law  required  the 
sheriff  to  take  the  bond  to  himself.  In  many  of  the  States, 
however,  it  is  by  statute  to  be  made  to  the  defendant.  When  the 
statute  requires  it  to  the  defendant,  the  officer  is  a  trespasser  if 
lie  take  the  goods  upon  a  bond  to  liimself,  and  the  instrument  is 
void.***  The  statutory  provisions  upon  this  question  must  there- 
fore be  closely  followed. 

"State  V.  Stephens,  14  Ark.  266. 

«  Smith  V.  Whiting,  97  Mass.  317. 

^  Purple  V.  Purple,  5  Pick.  2226. 

[A  bond,  blank  as  to  the  name  of  the  obligee  though  attached  to  the 
writ  against  the  plaintiff,  will  not  sustain  an  action,  Titus  v.  Berry,  73 
Me.  127.  The  officer  to  whom  such  bond  is  delivered  may  insert  the 
defendant's  name  and  the  defendant  is  entitled  to  have  it  so  inserted; 
but  if  he  procures  the  dismissal  of  the  suit  because  of  this  defect  he 
crnnot  then  have  leave  to  fill  the  blanks  so  as  to  make  it  a  valid 
bond.  Id.] 

the  real  party  in  interest,  and  if  there  are  several  creditors  they  can- 
not join; — but  in  the  same  case  on  rehearing,  58  Neb.  741,  79  N.  W.  732, 
the  opposite  conclusion  is  announced;  the  sheriff  is  held  to  be  the 
proper  party  plaintiff.  The  complaint  must  aver  that  the  judgment 
of  the  creditor  is  still  unpaid,  Knott  v.  Sherman,  7  S.  D.  522,  64  N.  W. 
542;  Parrott  v.  Scott,  6  Mont.  340,  12  Pac.  763.  If  the  same  goods  have 
been  retaken  by  the  sheriff  under  execution  in  the  same  case  this 
is  a  complete  defense,  Shull  v.  Barton,  supra;  sed  quaere.  It  seems  it 
should  be  received  only  in  mitigation  of  damages.  The  plaintiff  re- 
covers such  damages  as  he  has  sustained  by  the  particular  breach  of 
duty  assigned,  he  may  recover  nominal  damages  for  the  mere  failure  to 
return  the  bond  by  the  first  day  of  the  term;  but  he  will  not  for  this 
violation  of  duty  be  entitled  to  recover  the  value  of  the  goods,  or  the 
costs  of  the  action  of  replevin,  Robinson  v.  The  People,  8  Ills.  Ap.  279. 
Where  the  statute  entitled  plaintiff  to  a  bond  conditioned  for  delivery 
of  the  goods,  if  delivery  be  adjudged,  and  that  the  sheriff  failing  to 
take  such  bond  shall  "  be  liable  as  the  sureties  would  have  been  if  a 
proper  undertaking  had  been  given,"  and  the  plaintiff  proceeds  to 
judgment  in  the  action  of  replevin,  not  for  delivery  of  the  goods  but 


THE  BOND.  363 

§  404.  Though  defective  as  a  statutory  bond,  it  may  be 
good  at  common  law.  While  the  bond  may  be  faulty  under  the 
statute,  and  insutfieient  to  sustain  the  plaintiff's  suit  if  objections 
are  properly  interposed,  yet,  when  the  i)laintiff  has  had  the  goods 
delivered  to  him,  and  he  is  defeated,  and  for  any  reason  the  judg- 
ment is  against  him,  the  fact  that  the  bond  does  not  conform  to 
the  statute  is  no  defense  to  a  suit  thereon.  It  may  be  entirely 
inadequate  as  a  statutory  bond  to  sustain  replevin  on,  but  may, 
nevertheless,  be  good  as  a  common  law  bond,"  and  as  such,  must 
receive  such  construction  as  will  most  effectually  accomplish  the 
intent  of  the  parties  to  it.*" 

§  405.  The  same.  Construction.  In  Morse  v.  Hodsdon^  5 
Mass.  31S,  Pausons,  J.,  said  :  "The  condition  of  the  bond  was 
variant  from  the  statute,  but  the  statute  does  not  prohibit  the 
taking  of  bond  in  any  other  form,  or  declare  such  bond  void.  The 
plaintiff,  under  color  of  the  l)ond  given,  has  obtained  possession  of 
the  goods,  and  it  would  be  unreasonable  to  allow  the  makers  of 
the  bond  to  dispute  it,  after  their  principal  has  had  the  benefit  of 
it."  And  the  rule  may  be  regarded  as  general,  that  a  bond, 
though  irregular  under  the  statutes,  is  not  for  that  reason  void. 
The  party  may  treat  it  as  a  voluntary  bond,  and  recover  upon  it, 
provided  its  terms  are  sufficient  to  sustain  his  claim  ;  *'  and  uidess 
it  so  widely  departs  from  the  requirements  of  the  statute  as  to 
defeat  the  objects,  it  may  still  be  sufficient  to  support  an  action 
against  its  makers.^     Whether  a  bond,  good  as  a  connnon  law 

"Claggett  V.  Richards,  45  N.  H.  360;  Tuck  v.  Moses.  54  Me.  115; 
Persse  v.  Watrous,  30  Conn.  140;  Bell  v.  Thomas,  8  Ala.  527;  Barry  v. 
Sinclair,  Phill.  (N.  C.)  7;  Florrance  v.  Goodin,  5  B.  Mon.  (Ky.)  Ill; 
Lambden  r.  Conoway,  5  Har.  (Del.)  1. 

"Tuck  V.  Moses,  58  Me.  472;  Livingston  v.  Superior  Ct.  N.  Y.,  10 
Wend.  547. 

"Branch  v.  Branch.  C  Fia.  315;  Stansfeld  v.  Hellawell.  11  E.  L  &  Eq. 
559;  Claggett  v.  Richards,  45  N.  H.  300. 

••Stevenson  v.  Mlli«'r.  2  Litt.  Rop.  (Ky.)  307;  Cobb  v.  Curts.  4  Lltt. 
Rep.  235;  Fant  v.  Wilson,  3  Mon.  (Ky.)  342;  Hoy  v.  Rogers,  4  Mon. 
(Ky.)  225;  Roman  v.  Stratton,  2  Bibb.  (Ky.)  199;  Nunn  v.  Goodlctt.  5 
Eng.  (Ark.)  100;  Fahnestock  v.  Gllham,  77  111.  G37;  Jennison  v.  Maire. 


for  damageB,  the  BherifT  cannot  bn  made  liable  for  not  taking  the  bond 
rt-quired,  bocauHe  the  suretlea  would  not  have  been  llal)lc,  CJnilaratI  t'. 
OrHor,  27  N.  Y.  324.  WlH-re  thf<  offlcor  hcbl  the  goodK  under  civil  proccPB 
the  meaHure  of  damagcn  1h  not  Ibo  value  nf  the  goodK  but  th««  amount 
of  tho  [)lalntirr'H  demand  In  the  altaehment  or  execuflon.  Love  v.  Tho 
People,  IM  IllH.  Ap.  2.''.7.  The  offlf  er  Hued  In  Hucb  action  Ih  not  con- 
cluded by  the  Judgment  In  niibvlii.  Wilklns  t;.  ningU-y.  29  .Me.   73. 


3C4  THE    LAW    OF    REPLEVIN. 

"bond,  but  defective  as  a  sUitutory  iei)l(^viii  liond,  is  assignable, 
under  a  statute  which  makes  the  statutory  bond  assignable,  may 
Ik."  doubted.  Tlie  party,  in  seeking  to  recover  upon  it,  Avould 
doubtless  be  required  to  conform  his  proceeding  to  his  common 
law  rights.*' 

"  Austen  r.  Howard.  7  Taunt.  327. 

29  Mich.  209.  [Bond  voluntarily  entered  into  is  good  at  common  law 
though  its  conditions  are  more  onerous  than  those  prescribed  by  stat- 
ute, Colorado  Bank  r.  Lester.  73  Tex.  542.  11  S.  W.  626;  Whitaker  v. 
Sanders.  Tex.  Civ.  Ap.,  52  S.  W.  638; — unless  it  contravenes  the  policy 
of  the  law  or  is  repugnant  to  some  provision  of  the  statute.  Smith  v. 
Stubbs.  16  Colo.  Ap.  130.  63  Pac.  955.  A  bond  describing  a  stranger  as 
principal  and  the  plaintiff  as  surety,  is  sufficient,  inasmuch  as  each  is 
liable.  Dorus  r.  Somers.  57  Conn.  192,  17  Atl.  852.  A  forthcoming  bond, 
showing  in  what  cause  it  is  given  is  valid,  though  it  undertakes  for  the 
return  of  the  goods  by  the  defendant  and  not  by  the  sureties,  as  the 
statute  requires,  Hedderick  v.  Poutet,  6  Mont.  345.  12  Pac.  765.  The 
omission  of  the  words  "  without  delay  and  with  effect  "  does  not  invali- 
date the  bond.  Parrott  v.  Scott.  6  Mont.  340.  12  Pac.  763;— nor  the  omis- 
sion of  the  condition  to  return.  Hicklin  v.  Nebraska  Bank.  8  Neb.  463; 
— nor  the  omission  of  the  condition  to  pay  costs  and  damages,  Hotz  v. 
Bollman.  47  Ills.  Ap.  378.  A  bond  in  an  amount  exceeding  that  required 
by  the  statute  if  executed  voluntarily  binds  the  parties,  Colorado  Bank 
V.  Lester,  73  Tex.  542.  11  S.  W.  626.  The  sheriff  instead  of  a  bond  to  the 
defendant  took  indemnity  to  himself;  he  acted  in  good  faith  and  sup- 
posed this  was  what  the  law  required;  held,  that  having  been  required 
to  pay  the  value  of  the  goods  to  the  defendant  in  the  replevin  he 
might  recover  it  from  the  sureties  in  the  bond,  Martin  v.  Bolenbaugh,  42 
').  St.  508,  Wolfe  i\  McClure.  79  Ills.  564.  A  forthcoming  bond  executed 
)y  only  one  of  three  defendants  and  payable  to  the  sheriff  instead  of 
the  plaintiff,  but  otherwise  according  to  the  statute,  was  held  a  good 
voluntary  bond.  Smith  v.  Stubbs,  16  Colo.  Ap.  130,  63  Pac.  955,  Eickhoff 
r.  Eikenbary,  52  Neb.  332.  72  N.  W.  308.  The  bond  recited  the  issuance  of 
the  writ  out  of  the  court  of  St.  Clair  County,  and  gave  a  false  date; 
held,  a  declaration  averring  the  error,  and  from  what  court  and  on  what 
dr.te  the  writ  in  fact  issued,  was  sufficient.  Hotz  v.  Bollman,  supra. 
Defects  in  the  form  of  the  bond  will  be  disregarded  if  its  conditions 
substantially  accord  with  those  prescribed  by  the  statute,  Clark  v. 
Clinton,  61  Miss.  337.  And  the  party  may  be  liable  independent  of  the 
bond,  as.  where  the  defendant  having  given  a  forthcoming  bond  sold 
the  property  and  caused  it  to  be  sent  beyond  the  limits  of  the  state, 
he  is  liable  to  the  owner  for  its  value;  and  the  fact  that  the  sheriff 
collected  on  execution  the  amount  awarded  in  the  replevin  as  the  value 
of  the  property  and  damages  for  detention  does  not  bar  the  plaintiff's 
action,  he  having  refused  to  accept  the  amount,  Hanlon  v.  O'Keefe,  55 
JAo.  Ap.  528.] 


THE  BOND.  365 

§  406.  By  whom  it  must  be  executed.  The  bond  may  be 
executed  by  the  plaintiff  in  person,  or  by  some  one  for  him,  who 
is  duly  authorized  to  sign  his  name  to  such  an  undertaking." 

§  407.  Bond  may  be  executed  by  a  stranger  to  the  suit. 
Or  it  may  sometimes  be  executed  by  a  stranger  to  the  suit,  with 
proper  securities  in  behalf  of  the  plaintiff.  In  some  of  the  States 
the  statutes  i)rovide  that  the  plaintiff,  or  some  one  in  his  behalf, 
shall  execute  the  bond.  Under  this  provision,  it  is  not  essential 
that  the  plaintiff  should  appear  as  a  party  to  it  in  any  way.  A 
bond,  in  other  respects  formal  and  sufficient,  made  by  his  agent  or 
friend,  or  even  by  a  stranger,  in  his  behalf,  would  be  a  compliance 
with  such  a  statute.^  When  the  statutes,  however,  require  the 
plaintiff  to  execute  the  bond,  it  will  be  insufficient,  unless  made 
by  him  either  personally  or  by  his  attorney  duly  authorized. 

§  408.  How  executed.  It  must  be  executed  under  seal. 
An  instrument  not  under  seal  cannot  be  a  valid  replevin  bond."** 
The  securities  may  be  released,  and  others  substituted,  by  leave 
of  the  court ;  l)ut  the  party  giving  the  bond  cannot,  by  a  deposit 
of  money,  release  the  securities." 

"Howe  V.  Handley,  28  Me.  241;  Greeley  v.  Currier,  39  Me.  516;  Garlin 
V.  Strickland.  27  Me.  443. 

"Consult  Branch  v.  Branch,  6  Fla.  315;  Stats,  of  111.  Title  Replevin, 
§  10.  See  Frei  v.  Vogel,  40  Mo.  149;  Statute  of  Michigan,  §  504;  Claflin 
V.  Thayer,  13  Gray,  (Mass.)  459;  Kinney  v.  Mallorj',  3  Ala.  626. 

"  Lovejoy  v.  Bright,  8  Blackf.  (Ind.)  206.  This  has  been  changed  by 
statute  in  many  of  the  States.  See  Handley  v.  Hathaway,  4  T.  B.  Mon. 
(Ky.)   554. 

"Cummings  v.  Gann,  52  Pa.  St.  484. 


NoTK  XXIV.  Execution  of  the  Bond. — If  the  statute  require  bond 
from  the  plaintiff  "  or  someone  on  his  behalf  "  a  bond  subscribed  by  one 
plaintiff  in  behalf  of  all  Is  sufficient,  Dunbar  v.  Scott,  14  R.  I.  152. 
The  bond  need  not  be  subscribed  by  the  plaintiff  himself  unless 
the  statute  requires  it,  Kimball  v.  Tosca,  Conn.  59  Atl.  919;  Pierse 
V.  Miles,  5  Mont.  549.  0  Pac.  347.  A  bond  subscribed  in  the  naiuo 
of  the  plaintiff  without  authority  will  not  authorize  the  execution 
of  the  writ,  and  cannot  be  validated  by  ratification.  Smith  v.  Kislicr. 
13  R.  I.  624.  It  is  not  necessary  that  the  siirpties  nhould  8ul)8crlbo 
with  their  own  hands;  if  another  subscribe  in  their  presence  or  with 
their  consent,  or  after  being  subscribed  with  (heir  names  and  shown 
to  them,  they  assent  and  declare  It  to  be  their  act,  they  arc  bound, 
Rhode  V.  Louthaln.  8  BIf.  413.  Gardner  v.  Gardner.  5  Cush.  483;  Frost 
V.  Deorlng,  21  Me.  156.     Signature  to  a  blank  sheet  with  intent  tliiit  a 


3C6  THE    LAW    OF    REPLEVIN. 

§  409.     When  it  may  be  amended.     The  court  may  allow 

anu'iuliiK'ut  to  llie  lioiul   in   such   i>;iitic'ulars  as  are  amendable. 

particular  boiul  shall  thereafter  be  written  upon  it  imposes  no  liability, 
unless  the  maker  after  inspection  of  the  bond  acknowledge  it  as  his 
deed.  Hyprs  v.  McClanahan,  6  G.  &  .T.  250;  but  if  after  such  subscription 
the  bond  is  over-written,  and  the  party  who  has  subscribed  declare  to 
the  agent  of  the  obligee  that  it  is  his  seal  and  signature,  meaning  to 
be  bound  thereby,  he  Is  bound.  Id.  The  omission  of  seal  does  not  im- 
pair the  obligation  of  those  who  subscribe  the  paper,  Edwin  v.  Cox,  61 
Ills.  Ap.  507.  A  bond  subscribed  by  the  surety  only,  founds  a  claim 
against  his  estate,  Cahills  Appeal,  48  Mich.  616,  12  N.  W.  877;— and  it 
seems  the  plaintiff  himself  is  bound.  Id.  V/olf  v.  Hahn,  28  Kans.  588; 
Hoskins  V.  White.  13  Mont.  70,  32  Pac.  163;  contra,  Storz  v.  Finkelstein, 
50  Neb.  177,  69  N.  W.  856.  A  bond  naming  in  the  body  two  sureties, 
subscribed  by  one  only,  and  delivered  without  any  express  condition, 
binds  that  surety,  Johnson  v.  Weatherwax,  9  Kans.  75; — otherwise 
if  he  direct  that  it  be  not  delivered  until  executed  by  the  second  surety. 
Id.  The  condition  of  the  bond  merely,  without  the  obligatory  part,  does 
not  satisfy  the  statute.  Love  v.  The  People.  94  Ills.  Ap.  237.  A  bond 
beginning  with  *  *  *  "  N.  C.  Brower,  agent  for  and  acting  on  be- 
half of  Carlisle  Shoe  Co.,  incorporated,  as  principal,"  concluding  "Wit- 
ness our  hands  and  seals  this,  etc.,  N.  C.  Brower  L.  S.";  held  that  an 
action  thereon  against  the  shoe  company  could  not  be  maintained,  that 
it  was  the  individual  act  of  Brower,  and  the  receipt  by  the  company  of 
benefits  from  the  action  of  Brower  did  not  ratify  the  act  because  not 
done  in  their  name,  Carlisle  Co.  v.  Bailey,  69  Ills.  Ap.  349.  The  omis- 
sion of  the  name  of  one  of  the  sureties  from  the  body  of  the  bond  is  not 
ground  to  quash  the  writ,  it  being  apparent  that  both  sureties  intended 
to  be  bound,  and  are  bound,  Wheeler  v.  Paterson,  64  Minn.  231,  66  N.  W. 
964.  If  the  surety  make  his  mark,  the  sheriff  attesting,  it  is  suflBcient, 
Hester  v.  Ballard,  96  Ala.  410,  11  So.  427. 

The  bond  need  not  be  dated,  Kimball  Co.  v.  Tasca,  59  Atl.  919. 

A  bond  in  the  name  of  a  corporation,  "  by  "  its  manager,  signed  by 
the  manager,  without  the  corporate  name  or  seal,  is  not  the  bond  of  the 
corporation.  Id. 

In  Newland  v.  Willitts,  1  Barb.  20,  it  was  held  that  on  motion 
to  quash  the  writ  for  defects  in  the  bond,  the  court  may  allow  a 
new  bond  to  be  filed; — and  where  no  competent  surety  is  given 
an  amended,  or  a  new  bond,  should  be  ordered,  and  reasonable  time 
given  to  file  it,  and  if  the  order  is  not  obeyed  the  writ  should  be 
quashed,  Hopkins  v.  Green,  93  Mich.  394,  53  N.  W.  537; — and  where 
an  additional  bond  is  required,  the  surety  in  the  first  bond  is  not 
discharged;  he  may  be  made  liable  without  impleading  the  surety 
in  the  second  bond.  Smith  v.  Whitten,  117  N.  C.  389,  23  S.  E.  320.  In 
the  absence  of  statutory  authority  the  court  cannot  require  a  new  bond 
where  one  of  the  sureties  becomes  insufficient,  Hohenstein  v.  West- 
minster Co.,  31  Ap.  Div,  11,  52  N.  Y.  Sup.  235.    The  bond  providing  for 


THE  BOND.  3G7 

"When  it  was  not  in  double  the  amount,  the  court  permitted  a 
new  bond  to  be  filed."*  When  the  statute  required  two  securities, 
and  the  bond  was  signed  by  but  one,  the  court  permitted  another 
bond,  with  proper  security  to  be  given."  So,  when  it  appears 
necessary  to  use  one  of  the  securities  as  a  witness,  tlie  court  may 
permit  a  new  bond,  with  other  securities,  to  be  substituted.^ 
"When  the  securities  are  insolvent  at  the  time  of  the  commence- 
ment of  the  suit,  the  court  may  make  order  requiring  good  se- 
curity to  be  furnished,  and  may  hold  the  defendant  in  custody 
until  he  shall  have  complied  with  the  ordei*.**  A  bond  executed 
on  Sunday  is  void,*"  under  a  statute  which  prohibits  common 
labor.  But  where  the  statute  required  the  execution  of  a  bond 
within  twenty-four  hours,  and  the  replevin  was  on  Saturday, 
Sunday  was  not  included  in  the  estimate  of  time.*'     One  partner 

"Where  the  appraisement  was  $320.20,  and  the  sheriff  made  oath  the 
20  cents  was  a  mistake,  and  the  bond  was  in  double  $320,  an  amendment 
of  the  recital  was  in  order.     Hammond  v.  Eaton,  15  Gray,  (Mass.)  18G. 

"Whaling  v.  Shales,  20  Wend.  673;  Smith  v.  McFall,  18  Wend.  523; 
Hawley  v.  Bates,  19  Wend.  632;  Smith  v.  Howard,  23  Ark.  203. 

"Kendall  v.  Fitts,  2  Fost.  (N.  H.)  9.  [A  surety  once  accepted  cannot 
be  discharged  except  upon  notice  to  the  parties  and  to  all  the  other 
sureties,  Quarch  v.  Metz,  15  Misc.  622,  37  N.  Y.  Sup.  218.] 

One  of  several  plaintiffs  is  not  a  competent  surety,  Hopkins  v. 
Green,  93  Mich.  394,  53  X.  W.  537;— nor  is  a  non-resident,  though 
not  expressly  excluded  by  statute,  Wilkins  v.  Dingley,  29  Me.  73.] 

"Cash  V.  Quenichett,  5  Heisk.  (Tenn.)  738. 

•*Link  V.  Clemmens,  7  Blackf.  480. 

•'  Link  V.  Clemmens,  7  Blackf.  480. 

the  return  of  only  part  of  the  goods  is  valid  as  to  these;  as  to  the  resi- 
due return  should  be  ordered;  the  bond  cannot  be  amended,  Eastman  v. 
Barnes.  58  Vt.  329,  1  Atl.  569.  In  Rhode  Island  it  seems  the  bond  is  not 
amendable,  Whitford  v.  Goodwin,  13  R.  I.  115,  Simpson  v.  Wilcox,  18  R. 
I.  40,  25  Atl.  391.  The  court  has  no  power  by  its  own  action  to  amend 
the  undertaking  in  replevin.  Taylor  v.  Jackson.  35  Mice.  300,  71  N.  Y. 
Sup.  745;  but  where  the  law  allows  an  amendment,  an  amended  bond 
filed  and  approved,  cures  all  defects  in  the  original,  Moore  v.  Lewis,  76 
Mich.  300,  43  N.  W.  1.  A  new  bond  may  be  given  in  any  proper  case, 
Sherron  v.  Hall,  4  Lea  498.  The  court  may  permit  the  amendment  of  a 
forthcoming  bond  by  striking  out  an  admission  inadvertently  made 
therein  that  the  principal  has  certain  goods  In  possession,  Dale  v.  Gil- 
bert, 128  N.  Y.  625,  28  N.  E.  512;  but  such  amendment  should  not  be 
allowed  unlesH  the  other  party  can  be  placed  substantially  in  the  same 
position  EH  before  the  mistake;  If,  by  relying  upon  It,  he  has  failed  to 
make  an  examination  and  secure  evidence  of  the  facts  It  should  not  bo 
allowed  at  all,  /'/.] 


308  THE    lav;    OF    REPLEVIN. 

cannot  bind  his  to- partner  by  signing  and  sealing  bond  in  partner- 
ship name." 

§  410.  Defect  in  the  bond— when  and  how  taken  advan- 
tage of.  As  has  been  shown,  the  officer  executing  a  writ  of  re- 
plevin must  see  that  the  bond  is  properly  executed  and  delivered, 
as  re(iuircd  by  the  statute,  or  he  Avill  be  liable  as  a  trespasser;*' 
but  the  failure  of  the  sheriff  to  tike  bond,  or  the  acceptance  of  an 
informal  or  insufficient  one,  must  be  taken  advantage  of  by  the 
ilefendant  at  the  earliest  practicable  oi)portnnity,'"''  as  such  defect- 
ive bond  will  nt^t  deprive  the  court  of  jurisdiction,  nor  in  any 
way  interfere  with  or  avoid  the  proceeding;*^  and  by  omitting  to 
take  advantage  of  such  defect,  and  by  pleading  to  the  merits,  the 
defendant  will  be  presumed  to  have  waived  his  objection,  and  will 
not  usually  be  permitted  to  assert  and  take  advantage  of  them 
afterwards.**  When  the  bond  did  not  name  the  security  in  the 
body  of  it,  and  being  "  I "  promise  to  pay,  signed  b}''  the  principal 
and  security,  it  Avas  held  valid  as  against  the  signers." 

§  411.  Requisites  of  the  bond.  The  bond  should  correctly 
describe  the  suit  in  which  it  is  given ;  it  should  name  the  parties, 
especially  is  it  important  to  correctly  name  tlie  defendant  from 
whom  the  goods  are  to  be  taken ;  otherwise  it  cannot  be  told  for 
whose  benefit  the  bond  is  given.  An  omission  in  this  respect  is 
fatal,  and  the  bond  void.**  It  ought  also  to  state  the  court  in 
which  the  suit  is  brought,  and  the  date  or  term  at  which  the  suit 
is  begun  ;  but  error  in  this  respect  is  not  fatal  when  the  suit  and 

**  Butterfield  v.  Hemsley,  12  Gray,  226.  Compare  Judson  v.  Adams,  8 
Cush.  556. 

•"Dearborn  v.  Kelley,  3  Allen,  (Mass.)  426;  Nunn  v.  Goodlett,  5  Eng. 
(Ark.)  89;  Parker  v.  Hall,  55  Me.  363. 

*•  Houghton  V.  Ware,  113  Mass.  49. 

"Tuck  V.  Moses,  58  Me.  473;  Tripp  v.  Howe,  45  Vt.  524. 

"Tripp.  V.  Howe,  45  Vt.  524;  Spencer  v.  Dickerson,  15  Ind.  368. 
"Where  bond  was  with  a  single  security,  and  an  objection  to  it  therefore 
would  have  been  valid  if  made  in  apt  time,  yet,  being  allowed  to  run  to 
a  subsequent  term,  it  was  too  late.  Claflin  v.  Thayer,  13  Gray,  459; 
Simonds  v.  Parker,  1  Met.  508.  It  is  too  late  after  a  verdict.  Rich  v. 
Ryder,  105  Mass.  308.  Absence  of  the  bond  is  waived  by  going  to  trial, 
Bloomingdale  v.  Chittenden,  75  Mich.  305,  42  N.  W.  836,  Kimball  Co.  v. 
Tasca,  Conn.,  59  Atl.  919;  Bublitz  v.  Trombley,  113  Mich.  413,  71  N.  W. 
840. 

•'Clarke  v.  Bell,  2  Litt.  (Ky.)  164. 

"Arter  v.  The  People,  54  111.  228;  Matthews  v.  Storms,  72  111.  321. 


THE  BOND.  369 

property  are  so  described  that  they  can  readily  be  identified.®* 
Where  the  condition  was  to  appear  at  the  next  term  of  the  county 
court,  and  it  was  objected  that  there  was  no  such  court,  it  was 
held  that  the  objection  was  too  technical,  and  the  words  were 
held  to  mean  court  of  common  pleas.'** 

§  412.  The  same.  It  ought  also  to  describe  the  goods  to  be 
replevied,  and  to  state  their  value.  An  omission  in  this  last 
respect  may  not  be  serious,  but  a  failure  to  describe  the  goods 
would  lead  to  great  embarrassments,  and  probably  render  the 
bond  objectionable.''  It  must  be  for  a  definite  sum,  stated  in 
dollars  or  some  denomination  of  money ;  a  bond  in  "  double  the 
value  of  the  goods  about  to  be  replevied  "  is  not  sufficient."  The 
value  may  be  agreed  upon  by  the  parties,  and  such  agreement 
returned  by  the  officer." 

§  413.  The  conditions  separate  and  independent  of  each 
other.  The  bond  is  for  the  payment  of  the  penalty  mentioned 
therein  upon  conditions  which  have  already  been  stated.  Each 
of  these  conditions  is  a  separate  obligation,  distinct  from  all  the 
others,  and  for  a  failure  to  keep  any  one  of  them,  an  action  may 
be  sustiiined  for  the  full  penalty  of  the  bond,  even  though  the 
obligors  should  keep  all  the  others.'*     The  rule  is  also  well  settled 

"Branch  v.  Branch,  6  Fla.  315;  Graves  v.  Shoefelt.  60  111.  464;  Chad- 
wick  V.  Badger,  9  N.  H.  450. 

'"Arnold  v.  Allen,  8  Mass.  147. 

"McDermott  v.  Doyle,  11  Mo.  443.  Contra,  Branch  v.  Branch,  6  Fla. 
315.  [An  undertaking  entitled  in  the  cause  and  in  these  words  "  we 
undertake  that  plaintiff  shall  duly  prosecute  the  action  with  effect  and 
without  delay  and  return  the  property  in  controversy  to  defendants,  if 
return  be  adjudged  by  the  court,  and  pay  defendants  all  such  sums  of 
money  as  they  may  recover  against  plaintiff  for  any  cause  whatever, 
without  any  description  of  the  goods  or  any  recitations  whatsoever,  is, 
it  seems,  a  valid  vindertaking,  Story  v.  O'Dea,  23  Ind.  327.] 

"Bennett  v.  Allen.  30  Vt.  6S4;  Case  v.  Pettee,  5  Gray,  27;  Clark  ••;. 
Conn.  Riv.  R.  R.,  6  Gray,  303. 

"Woicott  V.  Mead.  12  Met.  516. 

"Perreau  v.  Bevan,  5  B.  &  C.  (11  EC.  L.)  284;  Brown  v.  Parker,  5 
Blackf.  292;  Sopris  v.  Lllley,  2  Colorado,  498;  Clark  v.  Norton.  G  Minn, 
417;  Hall  v.  Smith,  10  Iowa,  47;  F'ullerton  v.  Miller.  22  Md.  5;  Persse  v. 
WatrouH,  30  Conn.  146;  Pettygrove  r.  Hoyt,  2  Fairfl<'I(l,  (Mo.)  66;  Lamb- 
tlen  V.  Conoway,  5  Har.  (Del.)  1.  [IMltHburgh  Hank  i'.  Hall.  107  Pa. 
St.  r)83.  .lonr-H  V.  Smith,  79  Mi'.  452.  10  Atl.  256;  Gardiner  v.  McDermott. 
12  R.  I.  206;  Im«'l  i'.  Van  Deren,  8  Colo.  91.  5  Par.  803;  Pure  Oil  Co.  v. 
Terry,  209  Pa.  St.  403,  58  Atl.  814;  FIhhb  v.  Kalz.'iitlni'.  '.(.t  ind  (lio.l 
24 


370  THE    LAW    OF    REPLEVIN. 

that  where  the  conditions  of  the  bond  are  severable,  i)art  may  b& 
void,  while  the  remainder  may  be  valid.  If  the  valid  and  void 
portions  were  incapable  of  severance,  the  bond  would  be  wholly 
void.  Hnt  when  the  conditions  are  distinct,  the  obligor  is  not  so- 
injured  by  what  is  merely  void  that  he  can  make  use  of  it  to 
protect  him  against  what  is  valid." 

§  414.  The  condition  to  prosecute  without  delay.  If  tlie 
plaintill"  delay  to  prosecute  his  suit  for  any  uiuisual  or  unreason- 
able time,  without  the  defendant's  consent,  the  condition  to  prose- 
cute witliout  delay  will  be  broken."'  Thus,  a  failure  to  i)rosecute 
for  two' years,  without  good  cau.se  sliown,  was  regarded  as  a  for- 
feiture of  this  condition,  though  no  judgment  of  iiol pros,  was 
entered."  But  when  the  breach  assigned  was  for  a  failure  to 
prosecute  with  effect,  a  plea  that  the  suit  was  still  pending  was 
good,  as  the  condition  to  prosecute  with  effect  is  not  broken  by 
delay,  however  prolonged.  The  breach  should  in  such  case  be 
upon  the  condition  to  })rosecute  without  delay." 

§  415.  To  prosecute  with  effect.  The  condition  to  pros- 
ecute with  effect  is  sejiarate  and  absolute,  and  requires  the  plaintiff 
to  prosecute  the  suit  to  a  successful  issue."'     And  if,  for  any 

"  Newman  v.  Newman,  4  Maul.  &  Selw.  70.  This  question  is  con- 
sidered in  United  States  v.  Brown,  Gilpin  C.  C.  155.  See  Vroom  v.  Exrs. 
of  Smith,  2  Gr.  (14  N.  J.  L.)  480;  Anderson  v.  Foster,  2  Bailey,  (S.  C.) 
501;  Erlinger  v.  The  People,  36  111.  458;  Balsley  v.  Hoffman,  13  Pa.  St. 
607.  "  The  conditions  of  the  bond  are  disjunctive.  Each  depends  only 
on  Itself,  and  the  breach  of  ony  one  of  the  separate  conditions  occasions 
a  forfeiture  of  the  penalty,  notwithstanding  all  the  others  may  have 
been  kept."  Berghoff  v.  Heckwolf,  26  Mo.  513;  Persse  v.  Watrous,  30 
Conn.  146;  Kimmel  v.  Kint,  2  Watts,  (Pa.)  432;  Humphrey  v.  Taggart, 
38  111.  228;  Gibbs  v.  Bartlett.  2  W.  &  S.  (Pa.)  33.  "Where  one  of  the 
conditions  is  void,  it  does  not  affect  the  others."  Chaffee  v.  Sangston, 
10  Watts,  (Pa.)  266.  This  has  been  the  rule  ever  sinee  the  bond  has 
been  used  in  replevin.  Pigot's  Case,  11  Co.  Rep.  27;  Vaughn  v.  Norris, 
Ca.  t.  H.  139;  Turnor  v.  Turner,  2  Brod.  &  Bing.  112;  Harrison  <?. 
Wardle,  5  Barn.  &  Adolph,  146;  Badlam  v.  Tucker,  1  Pick.  286;  Brown 
r.  Parker,  5  Blackf.  (Ind.)  292.  See  Dugan  v.  England,  Harper,  (S.  C.) 
214. 

••Daniels  v.  Patterson,  3  Comst.  (N.  Y.)  51. 

"Axford  V.  Perrett,  4  Bing.  586.  See  Moore  v.  Bowmaker,  7  Taunt. 
97. 

•' Brackenbury  v.  Pell,  12  East.  586;  Harrison  v,  Wardle,  5  B.  & 
Adolph,  146. 

"Persse  v.  Watrous,  30  Conn.  144;  Tummons  v.  Ogle,  37  E.  L.  &  Eq. 
15;  Humphrey  v.  Taggart,  38  111.  228;  Balsley  v.  Hoffman,  13  Pa.  St.  603. 


THE  BOND.  371 

cause,  the  plaintiff  fails  in  his  suit,  or  suffers  a  non-suit,  or  judg- 
ment, or  verdict,  against  him,  it  is  a  breacli  of  this  condition  for 
which  an  action  may  be  sustained  for  the  full  penalty  of  the 
bond.^  If  the  action  be  dismissed,  even  with  the  consent  of  the 
defendant,  it  is  a  clear  failure  to  prosecute  with  effect ;  *"  but  con- 
sent of  the  defendant  to  waive  any  of  his  rights  to  damages,  or  to 
return,  would  change  the  case."-  So  when  the  defendant  pleaded 
non  cepit,  and  the  plaintiff  afterward  was  non-suited,  there  was 
no  failure  to  prosecute  with  success.*'  Failure  to  prosecute  with 
effect  constitutes  a  breach  of  condition  of  the  bond,  without  judg- 
ment for  a  return,'**  and  such  a  judgment  is  not  necessary  to  en- 
title the  defendant  to  sustain  an  action  for  a  failure  to  keep  this 
condition." 

[Boom  V.  St.  Paul  Co.,  33  Minn.  253,  22  N.  W.  538;  Pittsburgh  Bank  v. 
Hall,  107  Pa.  St.  583.  The  condition  to  "  duly  prosecute  "  does  not  im- 
port that  plaintiff  shall  prosecute  successfully.  Citizens  Bank  v.  Morse, 
60  Kans.  526,  57  Pac.  115.  Plaintiff  recovers  only  nominal  damages  for 
the  breach  of  this  condition  unless  further  actual  damage  is  shown, 
Imel  V.  Van  Deren,  8  Colo.  90,  5  Pac.  803,  Felheimer  v.  Hainline,  65 
Ills.  Ap.  384.  But  if  the  replevin  be  discontinued  the  plaintiff  in  the 
action  on  the  bond  is  entitled  to  at  least  nominal  damages,  Franks  v. 
Matson,  211  111.  338,  71  N.  E.  1011.] 

"M'Farland  v.  McNitt,  10  Wend.  330;  Langdoc  v.  Parkinson,  2  Bradw. 
(111.)  136;  Morgan  v.  Griffiths,  7  Mod.  380;  Turner  v.  Turner,  2  Brod.  & 
Bing.  107;  Perreau  v.  Bevan.  5  B.  &  C.  284;  Phillip  v.  Pierce,  3  Maul. 
&  Selw.  182;  Gould  v.  Warner,  3  Wend.  54;  Dias  v.  Freeman,  5  T.  R.  195 
and  104;  Humphrey  v.  Taggart,  38  111.  228;  Doogan  v.  Tyson,  6  Gill.  & 
J.  (Md.)  453;  Hansard  v.  Reed,  29  Mo.  473;  Berghoff  v.  Heckwolf,  26 
Mo.  511. 

"  Stevison  v.  Earnest,  80  111.  513. 

"Hall  V.  Smith,  10  Iowa,  46. 

"Cooper  V.  Brown,  7  Dana,   (Ky.)   333. 

"Elliott  V.  Black,  45  Mo.  373;  Brown  v.  Parker,  5  Blackf.  (Ind.)  292; 
Dias  V.  Freeman,  5  Term.  R.  195  and  104. 

"Soprls  V.  Lllley,  2  Colorado,  498.  Where  the  bond  is  conditioned  o 
prosecute  with  effect  a  dismissal  of  the  replevin  renders  the  surety  in 
the  bond  liable  for  a  return  of  the  goods.  Rauh  v.  Waterman,  29  Iml. 
Ap.  344.  61   N.  E.  743. 

Bond  In  replevin  ronditionf]  for  due  prosecution,  return  of  the  goods 
If  adjudged,  and  "  i)ayment  of  .such  sumH  of  money  as  may  be  ad- 
Judged  In  this  action  against  plaintiff,  not  exceeding,  etc.,"  and  the 
coRtH  of  the  action,  binds  the  plaintiff  to  pay  In  addition  to  the  costs 
only  such  sums  as  are  adjurlged  against  him  In  the  replevin.  But  If  he 
diKcontlnuf'H  his  action  the  defendant,  under  the  condition  for  due  prose- 
rutlon.  recovrrs  the  value  of  th(!  goods  with  Interest.  Kentucky  Co.  v. 
Crabtree,  Ky..  80  8.  W.  1161. 


372  THE    LAW    OF    REPLEVIN. 

§  416.  The  same.  What  is  prosecution  with  effect. 
Where  the  defendant  pleads  /xui  cejnt  only,  and  succeeds  upon 
the  issue  that  he  did  not  take  the  goods,  such  a  verdict  in  liis  favor 
does  not  constitute  a  breacli  of  tlie  condition  of  tlie  plaintifl's  bond 
to  prosecute  with  effect.  Instead  of  entitHng  him  to  a  judgment 
for  a  return,  such  a  result  only  ratifies  his  renunciation  of  the 
property.**  The  statutory  form  of  the  bond  under  discussion 
differed  slightly  from  the  ordinary  replevin  bond,  the  conditions 
of' the  former  being,  "  that  in  case  the  plaintiff  failed  to  make 
good  his  claim  to  the  property,"  etc.  The  court  says,  "  the  primary 
condition  of  the  bond,  that  which  is  the  basis  of  liability  on  it,  is, 
that  in  case  the  plaintiff  shall  fail  to  make  good  his  claim  to  the 
property,  he  will  re-deliver  the  goods.  Whatever  absolves  him 
from  this  condition  discharges  him  from  every  liability  on  his 
bond."  Success  by  the  defendant  on  the  simple  issue  of  no)i  cepit, 
instead  of  a  breach  of  the  bond,  is  an  effectual  defense  against  all 
his  claims  under  it." 

§  417.  Prosecution  in  inferior  court  not  sufficient  when 
the  case  is  appealed.  Prosecution  with  effect  in  the  inferior 
court  does  not  satisfy  this  condition  when  the  suit  is  removed  to 
a  superior  court.  The  plaintiff  is  bound  to  follow  and  prosecute 
it  to  a  successful  issue.  This  was  the  common  law  in  cases  where 
the  action  was  removed  by.  a  writ  of  recordari,  or  by  pone^  and  is 
the  rule  in  this  country  when  the  removal  is  by  appeal  from  an 
inferior  to  a  superior  court.**'  Where  the  parties  stipulated  that 
the  replevin  suit  should  be  dismissed,  and  that  the  plaintiff  should 
pay  the  defendant,  who  was  the  plaintiff's  landlord,  a  certain 
sum,  and  that  each  should  paj''  his  own  cost,  this  stipulation  was 
held  suflRcient  evidence  of  a  failure  to  prosecute  with  effect."" 

'*Ladd  V.  Prentice,  14  Conn.  116. 

•^See,  also,  Persse  v.  Watrouse,  30  Conn.  147. 

'^  Lane  v.  Foulk,  Comb.  228;  Gwillim  v.  Holbrook,  1  Bos.  &  Pul.  410; 
Vaughn  r.  Norris,  c.  t.  H.  137;  Blacket  v.  Cressop,  1  Lutw.  688;  Butcher 
V.  Porter,  1  Show,  400. 

"  Balsley  v.  Hoffman,  13  Pa.  St.  603;  Gibbs  v.  Bartlett,  2  W.  &  S.  (Pa.) 
34. 

"•'Hallett  V.  Mountstephen,  2  Dow.  &  Ry.  343.  [When  plaintiff  re- 
covers part  of  the  goods  and  defendant  the  residue,  separate  judgments 
are  entered;  appeal  by  one  party  does  not  reopen  the  judgment  given  in 
his  favor,  Vinal  v.  Spofford,  139  Mass.  126,  29  N.  E.  288,  Bates  v.  Stanley, 
51  Neb.  252,  70  N.  W.  972.  The  value  of  the  goods  is  the  amount  in 
controversy  in  a  suit  on  the  bond,  though  the  plaintiff's  only  claim 


THE  BOND.  373 

§  418.     Death  of  party  pending-  suit.     But  if  the  plaintiff 

die  pending  suit  the  condition  to  prosecute  with  etfect  is  not 
broken,  the  reason  assigned  being  that  the  death  of  the  party 
renders  the  prosecution  of  the  replevin  suit  impossible,  and  the 
performance  of  the  condition  rendered  impossible  by  the  act  of 
God.''  So  Avhen  the  plaintiff  prosecutes  his  suit  until  abated  by 
the  death  of  the  defendant,  it  will  be  regarded  as  a  compliance 
with  the  conditions  to  prosecute  with  effect.'^ 

§  419.  The  condition  to  return.  The  condition  to  return 
the  goods,  if  return  be  awarded,  is  one  of  the  principal — perhaps 
the  principal — condition  of  the  bond.  The  obligation  imposed 
upon  the  makers  of  the  bond  by  this  condition  is  an  active,  not  a 
passive,  duty.  It  requires  a  return  of  the  goods.  The  object  is  to 
secure  a  prompt  restoration  to  the  defendant  of  the  goods  which 
have  been  taken  from  him  upon  the  writ.  It  is  not  simj)ly  a 
condition  to  surrender  the  goods  to  an  officer  upon  a  writ  of 
return,  or  that  the  property  may  be  extorted  from  the  makers  of 
the  bond  on  such  process.  To  a  suit  for  a  failure  to  keep  this 
condition  it  is  no  defense  to  say  that  the  sheriff  did  not  take  the 
property  when  he  could.*^     A  judgment  for  a  return  not  complied 

is  that  of  an  execution  creditor  for  a  very  much  less  amount,  Eidson  v. 
Woolery,  10  Wash.  225,  38  Pac.  1025.  Where  the  goods  increase  in  value 
pending  an  appeal  to  the  district  court,  that  court  in  ascertaining  the 
value  should  allow  for  this  increase,  and  may  give  judgment  accordingly 
even  for  an  amount  in  excess  of  the  jurisdiction  of  the  justice  in  which 
the  suit  was  commenced,  Deck  v.  Smith,  12  Neb.  389,  11  N.  W.  852.  In 
justice  court  plaintiff  was  defeated  and  return  was  awarded;  the  de- 
fendant, an  officer,  seized  the  goods  accordingly;  plaintiff  in  due  season 
perfected  an  appeal;  nevertheless  the  defendant  sold  the  goods  under 
his  process; — held,  that  he  became  liable  for  the  value;  that  his  duty  on 
the  perfection  of  the  appeal  was  to  return  the  goods.  Deck  v.  Smith, 
supra. 

By  statute,  in  suits  commenced  before  a  justice,  the  Inquiry  was 
limited  to  the  property  and  right  of  possession  In  the  goods  seized  under 
the  writ.  In  an  appeal  In  such  case,  the  court  of  Its  own  motion 
limited  the  Inquiry  accordingly,  Burket  r.  Pheister,  114  Ind.  .'■)03,  10  N. 
E.  8131 

•'  Persse  v.  Watrous,  30  Conn.  147;  Green  v.  Barker,  14  Conn.  431;  Par- 
Rons  V.  Williams.  9  Conn.  230;  Burkle  v.  Luce,  1  Comst.  (N.  Y. )  103; 
Burkie  v.  Luce.  0  Hill,  ( N.  Y.)  558;  Morris  v.  Mathews.  2  Ad.  &  El. 
(.N.  H.)  297. 

"Badlam  v.  Tucker,  1  I'Uk.  284.  Such  was  the  law  in  England. 
Ormand  v.  Brlerly,  Carth.  519;   Bacon  Ab.  title  Replevin.  IJ. 

"  Jennlson  v.  Halre,  29  Mich.  209;  Burkle  v.  Luce,  6  Hill,  GG8;  Peck  v. 


374  THE    LAW    OF    REPLEVIN. 

\y\{\\  is  a  bre:'.fh  of  this  condition;'"  but  where  the  condition  is  to 
make  ivturn  if  rt'turn  be  awarded  the  obligors  are  not  gniltj'  of  a 
lircach  of  this  eondition  unless  there  be  a  judgment  for  a  return.** 
Tlie  condition  to  make  return  is  performed  if  the  plaintiff  in 
replevin  restore  the  goods  seasonably  after  the  return  is  awarded;** 
or  if  the  goods  are  taken  on  a  writ  of  return  by  the  officer,  it  is  a 
compliance  with  the  condition.*'  To  an  action  on  a  bond  the 
defendant  i)leaded  that  one  of  the  defendants  forcibly  took  the 
po.ssession  from  him.  J/<fJ,  no  defense,  though  it  might  be  per- 
mitted to  go  in,  in  mitigation  of  damages.*" 

§  4'20.  Offer  to  return  unaccompanied  by  a  tender  not  a 
performance.  An  otiVr  to  return  unaecomixmicd  by  auy  tender 
of  the  goods  is  not  a  performance  of  this  condition.  When  the 
defendant  in  a  suit  on  a  bond  attempted  to  show  that  he  offered 
to  returi\  the  goods  to  the  sheritt",  aud  that  the  latter  refused  to 
accept  them  because  he  had  been  directed  not  to  do  so  by  the 
attorney  ;  held,  no  proof  of  a  tender,  and  no  defense  to  suit  on 
the  bond.**  It  would  seem  from  this  case  that  an  actual  tender 
of  the  goods  was  necessary  to  performance  of  the  condition  to 
return. 

§  4'iL  The  condition  to  return  requires  the  return  of  the 
identical  goods.  This  condition  also  requires  the  return  of  the 
identical  goods  taken  ;  the  substitution  of  other  goods  of  like 
description  and  value  is  not  a  compliance  with  the  bond. 

§422.  And  in  as  good  order  as  when  taken.  It  is  also  an 
implied  ol)ligation  that  tlie  goods  shall  be  in  as  good  order  and 
condition  as  when  taken.  When  an  express  provision  of  the 
statute  to  this  effect  was  omitted  in  a  revision  by  the  legislature, 
it  was  not  regarded  as  changing  the  law.'""  But  if  the  property 
has  in  fact  been  injured  while  in  the  plaintiff's  possession,  that 

Wilson,  22  111.  206.  See  Carrico  v.  Taylor,  3  Dana.  (Ky.)  33;  Cooper 
V.  Brown,  7  Dana,  (Ky.)  333;  Cooper  v.  Peck,  22  Ala.  406;  Cushenden 
V.  Harman,  2  Tyler.  (Vt.)  431. 

"Smith  V.  Pries,  21  111.  656;  Davis  v.  Harding,  3  Allen,  302.  Compare 
Cowdin  V.  Stanton,  12  Wend.  120. 

"'Clark  V.  Norton,  6  Minn.  415;  Ladd  v.  Prentice,  14  Conn.  117. 

•"Sopris  V.  Lilley,  2  Col.  498.  See  Way  v.  Barnard,  36  Vt.  370;  Wal- 
bridge  v.  Shaw,  7  Cush.  560;  Cook  v.  Lothrop,  18  Me.  260. 

"Carrico  v.  Taylor,  3  Dana  (Ky.)  33;  Harrod  v.  Hill,  2  lb.  165. 

o'  Story  V.  O'Dea,  23  Ind.  326. 

"Schrader  v.  Wolflin,  21  Ind.  238. 

^«  Parker  v.  Simonds,  8  Met.  211;  Gibbs  v.  Bartlett,  2  W.  &  S.  (Pa.)  34. 


THE  BOND.  375 

fact  will  not  absolve  the  defendant  from  the  duty  of  receiving  it 
in  its  damaged  condition.  The  judgment  for  a  return  does  not 
leave  it  at  the  option  of  the  defendant  to  accept  or  refuse  and 
demand  the  value.  The  depreciation  is,  however,  to  be  made 
good,  and  the  party  may  receive  full  indemnity  by  suit  on  the 
bond.'" 


'"Allen  V.  Fox,   51  N.   Y.   562.     But  see   Douglass   v.   Douglass,   21 
Wall.  98. 


Note  XXV.  Duty  to  Return. — It  is  the  duty  of  the  plaintiff  to  re- 
turn the  goods  without  waiting  for  process.  If  he  fails  the  defendant 
may  proceed  to  collect  the  judgment,  Eickhoff  v.  Eikenbary,  52  Neb. 
332,  72  N.  W.  308;  Douglas  v.  Douglas,  21  Wall.  98,  22  L.  Ed.  479. 
It  is  his  duty  to  take  active  measures  to  return  the  goods  to  defendant 
in  a  reasonable  time  in  the  same  condition  as  when  taken.  He 
must  seek  the  defendant  and  make  tender  to  him  if  the  goods 
are  readily  capable  of  delivery.  Capital  Co.  v.  Learned,  36  Ore.  544,  59 
Pac.  454. 

Duty  to  Accept. — The  party  to  whom  return  is  made  cannot  decline 
to  receive  the  goods  when  tendered  at  a  suitable  time  and  place 
because  some  third  person  claims  them,  Reavis  v.  Horner,  11  Neb. 
479,  9  N.  W.  643.  Where  property  levied  upon  by  the  sheriff  is  bulky 
and  not  easily  removed,  and  is  suffered  to  remain  in  the  same  place 
by  one  replevying  it  from  the  sheriff,  his  offer  to  the  sheriff  to  return 
it  is  a  performance  of  the  judgment  in  favor  of  the  sheriff  in  the 
replevin  suit,  and  it  is  the  duty  of  the  sheriff  to  accept  it.  The  fact 
that  the  plaintiff  in  the  replevin  is  contemplating  an  appeal  from 
the  judgment  or  has  taken  the  initiatory  steps  to  review  the  judgment 
is  no  excuse  for  refusal  to  accept;  execution  for  the  value  will  be 
enjoined,  Frey  v.  Drahos,  10  Neb.  594,  7  N.  W.  319.  The  defendant 
is  not  bound  to  accept  unless  the  goods  are  returned  in  reasonable  time, 
Bradley  r.  Reynolds.  01  Conn.  272,  23  Atl.  928. 

Time  of  Return. — The  goods  must  be  returned  within  a  reasonable 
time  after  judgment  of  rctorno,  or  defendant  is  not  bound  to  accept 
them.  Bradley  v.  Reynolds,  CI  Conn.  272,  23  Atl.  928;  June  v.  Payne, 
107  Ind.  308,  7  N.  E.  370,  8  Id.  556.  A  return  at  any  time  before  the 
levy  of  the  execution  will  satisfy  the  other  alternative  of  the  judg- 
ment. LaVie  V.  Crosby.  43  Ore.  612,  74  Pac.  220.  The  defendant  may 
satisfy  the  judgment  by  surrendering  the  property  and  paying  the 
costs  "  when  presenterl  with  the  execution,"  Drake  v.  Auerl)ac'h.  37 
Minn.  506.  35  N.  \V.  3<;7.  In  Woodworth  v.  Gorsllne.  30  Colo.  186,  69 
Pac.  705,  It  was  held  that  If  the  defeated  party  prosecutes  an  upi)oai 
from  the  judgment,  and  is  defeated  therein,  the  successful  party  is 
not   required   to  accept  the  goods;    but  see  contra,  Ormsby  v.  Xolan. 


376  THE    LAW    OF    REPLEVIN. 

§423.  Judgment  for  a  return  a  breach  of  the  condition. 
Judgment  fur  a  return  having  been  given,  a  laihu-eof  the  plaintiff 

69  la.  130,  28  N.  W.  5G9;  Manker  v.  Sine.  47  Neb.  736,  66  N.  W.  840. 
And  see  June  v.  Payne.  Supra. 

Manner  of  Return. — Return  of  the  goods  to  the  place  from  which 
they  were  taken,  and  a  notice  to  the  defendant  in  replevin  that  they 
are  subject  to  his  order,  will  not  re-invest  him  with  possession  if 
he  refuses  to  accept.  Calnan  v.  Stern,  l.'i3  Mass.  413.  26  N.  E.  994. 
The  goods  must  be  tendered  to  the  party  to  whom  return  or  delivery 
was  adjudged;  a  tender  to  one  beneficially  interested  in  the  judg- 
ment is  of  no  avail,  Capital  Co.  v.  Learned,  36  Ore.  544,  59  Pac.  454. 
A  tender  on  condition  that  it  shall  be  accepted  in  full  satisfaction  of 
the  judgment  in  replevin,  is  ill,  Binkley  v.  Dewall,  9  Kans.  Ap.  891, 
58  Pac.  1028.  Notice  to  the  defendant  that  he  may  retain  the  goods 
and  treat  them  as  his  own,  when  in  fact  the  plaintiffs  have  an  agent 
in  charge  and  retain  him  in  charge,  is  not  a  return.  It  is  the  duty 
of  the  plaintiff,  although  the  goods  remain  upon  the  premises  of  the 
defendant  throughout  the  litigation,  to  withdraw  from  the  custody, 
Pittsburgh  Bank  v.  Hall,  iOOT  Pa.  St.  583.  In  Williams  v.  Eikenberry,  22 
Neb.  210,  34  N.  \V.  373,  it  was  assumed  that  an  offer  in  writing  filed 
in  the  clerk's  ofTice,  returning  to  defendant  the  property  in  con- 
troversy, if  assented  to  by  the  plaintiff  was  a  satisfaction.  The  statute 
of  Texas  provides  that  the  defendant  shall  have  a  right  to  deliver 
the  property,  within  a  time  specified,  "  to  the  sheriff  or  constable  of  the 
court  in  which  the  judgment  is  rendered,"  and  that  if  injured  or 
damaged,  etc.,  the  officer  shall  not  receive  it  unless  a  reasonable  sum, 
to  be  judged  by  the  officer,  shall  be  tendered  at  the  same  time. 
It  was  held  that  a  tender  to  the  party  himself  would  not  suffice, 
Childs  V.  Wilkinson,  15  Tex.  Civ.  Ap.  687,  40  S.  W.  749.  The  court 
in  argument  sustained  the  constitutionality  of  the  provision  which 
makes  the  sheriff  judge  of  the  damages  or  deterioration  of  the 
goods;  sed  quere.  If  the  party  accepts  the  tender  he  will  be  estopped 
by  it,  Id.  A  judgment  for  return  in  like  good  order  and  condition 
as  when  taken  will  not  be  construed  as  requiring  plaintiff  who  has 
replevied  the  machinery  of  a  manufacturer  to  put  it  in  working 
order  in  its  original  place.  The  expense  and  trouble  of  such  re- 
placement, and  the  delay  necessary,  are  to  be  estimated  as  damages, 
Stevens  v.  Tuite,  104  Mass.  328.  A  return  to  the  sheriff  where  this  is 
the  condition  of  the  bond,  is  sufficient,  June  v.  Payne,  107  Ind.  308,  7 
N.  E.  370,  8  Id.  556. 

Condition  of  the  Goods  at  Time  of  Return. — Return  must  be  made 
in  the  same  good  order  as  when  taken,  June  v.  Payne,  107  Ind.  308, 
7  N.  E.  370,  8  Id.  556.  The  defendant  is  not  bound  to  accept  the 
goods  unless  returned  "  in  the  same  good  order  and  condition  "  as  when 
replevied,  Johnson  v.  Mason,  70  N.  J.  L.  13,  56  Atl.  137;  Nichols  v. 
Paulson,  10  N.  D.  440,  87  N.  W.  977.     Even  though  the  depreciation 


THE  BOND.  377 

to  make  it  is  a  breach  of  the  condition,  and  suit  may  be  brought 
at  once,  without  demand.'"'-     Neither  is  it  necessary,  in  the  absence 

""Wright  V.  Quirk,  105  Mass.  45;  Cook  v.  Lothrop.  18  Me.  260;  Parker 
V.  Simonds,  8  Met.  205;  Persse  v.  Watrous,  30  Conn.  148. 


be  due  to  ordinary  wear  and  tear,  Id.  The  goods  must  be  returned 
in  substantially  the  same  condition  as  when  taken.  Fair  v.  Citizens 
Bank,  69  Kans.  353,  76  Pac.  847,  citing  Washington  Company  v. 
Webster.  125  U.  S.  426,  31  L.  Ed.  799;  George  v.  Hewlett,  70  Miss. 
1,  12  So.  855,  35  Am.  St.  626;  McPherson  v.  Acme  Co.,  70  Miss.  649, 
12  So.  857;  Hazlett  v.  Witherspoon.  Miss.  25  So.  150;  Hinkson  v. 
Morrison.  47  la.  167;  Yelton  v.  Slinkhard,  85  Ind.  190.  The  defendant 
by  taking  judgment  for  damages  for  the  detention  of  the  goods  is 
not  estopped  to  object  to  the  condition  of  them  when  return  is 
tendered,  Nichols  v.  Paulson,  supra.  Where  the  statute  provides  that 
the  "  sheriff  or  constable  "  to  whom  the  same  are  tendered,  shall  not 
receive  the  goods  if  injured  or  damaged,  unless  the  defendant  at  the 
same  time  tenders  a  reasonable  amount  for  the  injury,  the  officer 
is  the  judge  of  whether  the  goods  are  or  are  not  in  the  same  condition, 
Childs  V.  Wilkinson,  15  Tex.  Civ.  Ap.  687.  40  S.  W.  749. 

Option  to  Return. — Defendant,  against  whom  judgment  for  return 
of  the  goods  or  for  the  value,  is  awarded,  is  entitled  to  deliver  the 
goods  if  they  are  not  taken  and  returned  by  the  sheriff,  Carson  v. 
Applegarth,  6  Nev.  187.  The  party  against  whom  the  judgment  is 
given  in  the  alternative  has  the  election  whether  he  will  return  the 
goods  or  pay  the  value.  Bates  v.  Stanley,  51  Neb.  252,  70  N.  W.  972. 
If  the  defeated  plaintiff  offer  to  return  the  goods  the  defendant 
is  bound  to  accept  them,  and  the  tender  discharges  the  bond  and  satis- 
fies the  judgment,  so  far  as  relates  to  the  value.  Parker  v.  O.xendine. 
85  Mo.  Ap.  212.  Under  a  statute  that  "  in  the  execution  for  the  delivery 
of  personal  property  it  must  require  the  sheriff  to  deliver  possession 
of  the  same  to  the  person  entitled  thereto,"  held,  that  the  defeated 
plaintiff  has  no  election  to  pay  for  the  goods;  they  must  be  returned 
in  specie  if  it  can  be  done,  Johnson  v.  Eraser,  2  Idaho,  404,  18  Pac. 
48. 

Equivalent  in  other  Goods. — The  plaintiff  if  defeated  must  return 
the  identical  goods  which  were  replevied.  Union  Stove  Works  v. 
Brledenstein,  50  Kans.  53,  31  Pac.  703.  The  defendant  cannot  be 
required  to  accept  different  articles,  Irvin  v.  Smith,  68  Wis.  228,  31 
N.  W.  912.  The  Identical  goods  taken  upon  the  writ,  and  In  sub- 
stantially the  same  condition,  must  be  returned,  Elckhoff  v.  Klkenbary, 
52  Nf'b.  332,  72  N.  W.  3(t8;  Binkley  v.  Dewall.  9  Kans.  Ap.  891_.  58 
Pac.  1028.  But  In  Williams  v.  Eikenberry.  22  Neb.  210.  34  N.  W. 
373,  the  property  rc-plovi«-d  being  a  lumber  yard  It  was  nald  th.it 
"an  equivalent  number  of  feet  of  the  same  class  and   value"  must 


378  THE    I. AW    OF    REPLEVIN. 

of  statutory  requirenient,  to  have  a  -writ  of  return  before  suit  on 
the  bonil.  It  is  sufficient  that  the  return  was  adjudged  and  not 
made.'"' 

'"Peck  V.  Wilson.  22  111.  206.  Plaintiff  may  prove  it.  Smith  v.  Pries. 
21  111.  656.  See  Robertson  v.  Davidson,  14  Minn.  554;  M'Farland  v. 
M'Nitt.  10  Wend.  330;  Gould  v.  Warner,  3  Wend.  54;  Knapp  v.  Colburn. 
4  Wend.  618;  Hunter  v.  Sherman,  2  Scam.  544.  Contra,  suit  on  the  bond 
for  breach  of  the  condition  to  return  cannot  be  maintained  without  a 
writ  of  return  unsatisfied.  Cowden  r.  Pease,  10  Wend.  334;  Cowdin  v. 
Stanton.  12  Wend.  120;  Pemble  v.  Clifford,  2  McCord,  (S.  C.)  31;  Pemble 
r.  Clifford,  3  McCord,  (S.  C.)  34;  Shaw  ik  Tobias,  3  Comst.  188. 


be  construed  the  same  as  that  taken;  and  in  Starke  i'.  Payne.  85  Wis. 
r.33,  55  N.  W.  185.  it  was  held  that  where  lumber  in  the  hands  of  an 
assignee  for  creditors  is  scattered  about  the  yard,  and  to  separate 
and  distinguish  plaintiff's  lumber  from  the  other  is  difficult,  any  de- 
ficiency is  to  be  made  up  from  other  lumber  pertaining  to  the  insolv- 
ent's estate.  In  replevin  for  two  hundred  and  twenty  boys'  coats,  judg- 
ment was  given  for  the  plaintiff  for  possession  of  the  goods  "  mentioned 
in  the  aflilavit  and  complaint,  etc."  It  appeared  upon  the  trial  that  the 
defendant  had  received  for  the  plaintiff  three  boxes  of  cloth  cut  into 
the  shape  of  coats  and  ready  to  be  made.  Held  the  officer  was  bound 
to  accept  the  cloth  upon  his  execution  if  tendered  by  the  defendant, 
Monness  v.  Livingstone,  84  N.  Y.  Supp.  124. 

Partial  Return. — The  unsuccessful  party  is  not  entitled  to  retain 
any  part  of  the  goods.  Black  v.  Hilliker,  130  Calif.  190,  62  Pac.  481. 
The  successful  defendant  is  entitled  to  return  of  all  the  goods 
replevied,  or  if  all  cannot  be  returned,  the  value  of  all,  Whetmore  v. 
Rupe,  65  Calif.  237,  3  Pac.  851.  Where  no  provision  is  made  by 
statute  for  delivery  of  part  of  the  goods  recovered  or  for  the  method 
of  ascertaining  the  value  of  any  part  not  delivered,  the  successful 
plaintiff  is  not  bound  to  accept  a  part,  and  the  court  will  not 
compel  him  to  do  so,  Kingsley  v.  Sauer,  17  Misc.  544,  41  N.  Y.  Sup.  248. 
The  defendant  had  judgment  for  the  return  of  certain  posts,  poles 
and  ties  before  that  replevied  by  the  plaintiff,  and  then  lying  in  a 
certain  slough,  and  a  creek  leading  thereto.  Execution  was  issued 
to  the  sheriff  commanding  him  to  take  the  goods  from  the  plaintiff 
and  deliver  them  to  defendant,  or  if  delivery  could  not  be  had,  to 
satisfy  the  judgment  for  the  value  out  of  the  lands,  goods  and 
chattels  of  the  plaintiff.  The  sheriff  returned  upon  this  execution  that 
he  could  not  find  the  goods  and  that  return  thereof  could  not  be  had, 
and  that  he  had  therefore  levied  on  certain  lands  of  the  plaintiff  to 
satisfy  the  execution.  The  lands  were  accordingly  advertised  for  sale. 
Plaintiff  thereupon  procured  an  order  upon  the  defendant  to  show 
cause    why    he    should    not    accept    in    satisfaction    of    the    judgment 


THE  BOND.  379 

§  424.     The  bond    only  relates  to  claims  in  the  suit  in 
which  it  is  given.     The  bond  is  only  for  the  indemnity  of  the 

certain  posts,  ties  and  poles,  "  as  then  piled  on  the  bank  of  the 
slough  .  .  and  in  the  creek  .  .  and  why  said  execution  should 
not  be  recalled."  On  the  report  of  a  referee  the  court  entered  an  order 
specifying  that  "  of  the  ties,  poles  and  posts  mentioned  in  the  order 
to  show  cause "  a  certain  specified  number  were  the  same  seized 
upon  in  the  writ  of  replevin,  and  declared  the  judgment  satisfied.  It 
was  held  that  this  order  could  be  granted  only  on  satisfactory  proof 
that  all  the  property  seized  under  the  writ  of  replevin  had  been  re- 
turned, or  a  return  tendered  to  the  plaintiff  personally  before  the  exe- 
cution issued;  that  if  such  tender  had  been  in  fact  made  before 
execution  issued,  the  plaintiff  might  have  prevented  the  Issue  of  exe- 
cution; but  having  permitted  the  execution  to  issue  the  whole  mat- 
ter was  with  the  sheriff,  and  plaintiff  must  treat  with  him;  that 
the  sheriff's  return  that  the  goods  could  not  be  had  was  con- 
clusive upon  all  parties,  and  that  plaintiff  could  not  be  permitted 
to  show  in  falsification  of  it  that  the  goods  could  have  been  had, 
Irvin  V.  Smith,  C6  Wis.  113.  27  N.  W.  35.  A  judgment  for  specific 
articles  of  machinery  "  or  the  value  thereof  in  the  event  the  same 
of  any  part  thereof  cannot  be  found,"  is  not  satisfied  by  tender  of  a 
part  of  the  machinery  and  a  sum  of  money  in  lieu  of  the  residue, 
Pauls  V.  Mundine,  Tex.  Civ.  Ap.  85  S.  W.  42.  But  in  other  courts 
the  rule  is  less  strict.  In  Reavis  v.  Horner,  11  Neb.  479,  9  N.  W.  643, 
a  tender  of  the  principal  part  of  the  goods,  with  the  offer  to  pay  for 
the  value  of  the  residue,  was  held  sufficient,  and  the  defendant  was 
allowed  an  injunction  to  restrain  the  collection  of  the  value.  In 
Meixell  v.  Kirkpatrick,  33  Kans.  282,  6  Pac.  241,  it  was  held  that  a 
defendant  adjudged  to  deliver  several  articles  may  make  delivery  of 
part  in  satisfaction  pro  tanto,  if  unable  to  deliver  the  residue;  see 
also  Harts  r.  Wendell,  26  Ills.  Ap.  274;  Edwin  v.  Cox,  61  Ills.  Ap.  567. 
But  the  machinery  of  a  factory  is  to  be  considered  as  a  whole;  an 
offer  to  return  a  portion  of  it  is  not  to  be  considered  in  an  action 
on  the  bond,  Stevens  v.  Tuite,  104  Mass.  328.  In  Reavis  r.  Horner. 
supra,  there  were  among  the  articles  replevied  six  hundred  bushels  of 
corn  valued  by  the  court  at  $90,  one  hundred  and  eighteen  bushels  of 
wheat  valued  at  $88.50,  and  twenty  hogs  valued  at  $90;  fifty  bushels  of 
corn,  sixty-eight  bushels  of  wheat,  and  five  of  the  hogs  were  not  re- 
turned. It  was  held  that  a  tender  of  the  value  of  the  missing  articles 
at  the  rate  per  bushel  fixed  by  the  court  upon  the  wheat  and  the  corn, 
as  asfcrtained  by  computation,  was  sufflcient.  the  court  indulging  the 
presumption  that  the  value  of  carh  bushel  was  the  same.  As  to  the 
hogs,  a  similar  method  of  ascortaiiimcnt  was  pursurd,  ;uid  (h«i  (icfeiKlant 
not  objecting  on  this  ground,  was  held  to  be  concluded,  and  the  tender 
sufflcient. 

Kffcct  of  Return. — Delivery  of  the  goods  before  levy  of  the  execution 


380  THE    LAW    OF    REPLEVIN. 

party  for  damages  occasioned  by  the  replevin  suit.  A  suit  in 
replevin  wa.s  begun  and  disniis.sed.  The  defendant  then  brought 
replevin  for  the  property,  and  recovered  judgment  and  damages 
to  the  amount  of  $270.  To  satisfy  these  damages,  she  brought 
suit  on  the  bond  given  to  her  in  the  original  suit.  Ilehl^  the  bond 
was  for  the  special  purpose  of  indemnifying  her  for  such  damages 
as  might  be  adjudged  in  that  suit ;  not  for  damages  in  a  subsequent 
one.  The  suit  in  which  the  bond  was  given  was  dismissed,  with 
no  judgment  in  her  favor,  and  upon  such  claim  no  recovery  could 
be  had.'"* 

§  4'J5.  Actual  delivery  of  the  goods  on  the  writ  precedes 
liability  on  the  bond.  The  law  in  many  States  permits  the  de- 
fendant to  retain  the  property,  upon  giving  bond  to  abide  the 
order  of  the  court.  In  suit  on  a  bond  in  such  a  case  the  plaintiff 
must  allege  and  prove  a  delivery  of  the  property  to  the  plaintiff 
in  replevin.  The  delivery  must  precede  the  liability  on  the 
bond.'"^ 

''>•  Boyer  v.  Fowler,  1  Wash.  Ter.  119. 

'"  Nickerson  v.  Chatterton,  7  Cal.  570.  See  Clary  v.  Rolland,  24  Cal. 
147. 

satisfies  the  alternative  judgment,  Johnson  v.  Gallegos,  10  N.  M.  1,  CO 
Pac.  71.  Where  the  plaintiff  obtains  the  goods  he  must  upon  payment 
of  costs  enter  satisfaction  of  the  judgment,  Oskaloosa  Works  v. 
Nelson,  54  la.  519,  6  N.  W.  718.  A  return  of  the  goods  within  a 
reasonable  time  after  the  judgment  in  as  good  condition  as  when 
the  judgment  was  rendered,  and  payment  of  the  costs,  extinguishes 
the  judgment,  Archer  v.  Long,  47  S.  C.  556,  25  S.  E.  84.  And  a  return 
of  part,  though  not  in  like  condition  and  not  in  reasonable  time,  works 
satisfaction  of  the  judgment  in  the  proportion  which  the  value  of 
the  returned  goods  bears  to  the  value  of  all  as  assessed  by  the  jury; 
and  the  plaintiff  may  produce  testimony  as  to  this  before  the  court 
or  the  referee.  Id.  The  defendant  has  a  right  to  discharge  the  judg- 
ment of  retorno  by  return  of  the  goods  within  a  reasonable  time.  If 
the  return  is  declined  and  a  levy  proposed  he  may  have  an  injunction 
to  restrain  it,  Marks  v.  Willis,  36  Ore.  1,  58  Pac.  526.  The  sureties 
themselves  may  make  a  return,  Johnson  v.  Gallegos,  supra.  If  the 
surety  in  the  bond  having  a  chattel  mortgage  on  the  goods,  seize  them 
and  deliver  them  to  the  defendant  in  satisfaction  of  the  judgment 
of  return,  he  cannot  afterwards  assert  his  mortgage.  Rich  v.  Savage, 
12  Neb.  413,  11  N.  W.  863.  And  the  seizure  of  the  goods  under  the 
writ  of  retorno  satisfies  the  judgment,  though  the  goods  are  damaged, 
Douglas  V.  Douglas,  21  Wall.  98,  22  L.  Ed.  479. 


THE  BOND.  381 

§  426.  Actual  return  in  as  good  order  a  compliance  with 
this  condition.  An  actual  return  of  the  goods  in  proper  time 
and  order  is  a  compliance  with  this  condition.  So,  also,  when 
property  is  rei)levied  from  the  sheriff  and  comes  back  into  his 
hands  by  seizure  on  another  execution,  and  the  plaintiff  in  re- 
plevin requests  him  to  hold  it  on  the  first.  This  is  equivalent  to 
a  return  ;  the  condition  for  a  return  is  fulfilled.'^  And  there  are 
many  cases  which  recognize  the  continuing  lien  of  an  execution, 
(when  goods  seized  on  execution  have  been  replevied,)  in  case 
the  plaintiff  in  the  replevin  has  failed  in  his  suit."" 

§  427.  General  principles  governing  the  construction  of 
the  bond.  The  principles  which  govern  in  the  construction  of  a 
replevin  bond  are  similar  to  those  which  apply  to  other  bonds. 
When  the  terms  of  the  instrument  render  it  possible,  the  court 
will  always  adopt  a  construction  which  gives  to  the  bond  some 
effect,  rather  than  one  which  annuls  it.'"*  The  court  will  also 
look  to  the  manifest  intention  of  the  parties,  and  carry  it  out,  if 
that  be  possible,  from  the  terms  of  the  instrument.'"'  Words 
used  are  to  receive  their  ordinary  popular  meaning.""  The  object 
of  the  bond  is  to  provide  security  to  the  officer  and  indemnity  to 
the  defendant.  The  action  on  the  bond  ought  to  be  conducted 
with  the.'^e  ends  in  view,  to  best  subserve  the  principles  of  justice, 
having  due  regard  to  the  decision  in  the  replevin  suit,  and  the 
character  and  condition  of  the  bond,  and  the  breaches  assigned. 
When  the  action  of  replevin  was  dismissed,  and  the  defendants 
in  the  suit  on  the  Ijond  were  defaulted,  the  court,  on  a  writ  of 
inquiry  to  assess  damages,  permitted  them  to  show,  in  mitigation, 
that  they  were  the  owners  of  the  property.'"     This  rule  has  been 

•"•Hunt  V.  Robinson.  11  Cal.  262. 

""Caldwell  v.  Cans,  1  Blake,  (Mon.)  581.  See  Cook  v.  Lothrop.  18 
Me.  2G0;  Burkle  v.  Luse,  1  Comst.  163;  Evans  v.  King.  7  Mo.  411;  Hagaii 
V.  Luras,  10  Pet.  (U.  S.)  400;  Lockwood  v.  Perry,  9  Met.  440;  M'Rae  v. 
M'Lean.  3  Port.  (Ala.)   138. 

"^2  Bla.  Com.  179;  Mitchell  v.  Ingram.  38  Ala.  395.  So  of  deeds. 
Goodtitio  I'.  Bailey.  2  Cowper.  600;  Archibald  v.  Thomas,  2  Cowen,  284; 
Wolfe  V.  McClure,  79  111.  564. 

'"lb. 

"•Hawea  v.  Smith.  3  Fairfield,  (Me.)   429. 

'"  Belt  V.  Worthlngton.  3  Gill.  &  J.  (Md.)  247;  Stockwell  t».  Byrne,  22 
Ind.  9;  Doogan  v.  Tyson,  6  Gill.  &  J.  (Md.)  453;  Davis  v.  Harding,  3 
Allen,  302. 


382  -  THE    LAW    OF    REPLEVIN. 

engrafted  into  the  statutes  of  some  States,  and  adopted  by  con- 
stmu'tion  in  otluTs.'" 

§  4-JX.  Right  of  action  accrues  upon  a  failure  to  keep  any 
of  the  conditions.  The  right  of  action  on  the  bond  accrues 
whenevL'i-  the  plaintitt'  in  the  replevin  suit  fails  to  keep  any  of 
the  conditions.  Thus,  when  the  conditions  of  the  bond  are  that 
the  plaintiff  shall  prosecute  his  suit  with  effect,  and  without  de- 
lay, and  return  the  goods,  if  return  be  awarded,  the  suit  on  the 
bond  UKiy  be  sustained  when  the  plaintilf  fails  in  his  action,  even 
though  there  be  no  award  of  a  return.'" 

§  429.  Rights  of  the  securities.  The  securities  may,  in  all 
cases,  stand  upon  the  exact  terms  of  their  contract."*  They  are 
liable  for  their  express  covenants,  and  no  more.  They  are  re- 
sponsible for  tlie  performance  of  what  their  principal  is  lawfully 
bound  to  (It),  according  to  the  condition  of  the  bond.  The  court 
cannot  enlarge  or  vary  the  conditions  of  the  contract.  Thus, 
where  the  condition  was  to  prosecute  the  suit  to  final  judgment, 
and  to  pay  such  damages  and  costs  as  the  defendant  should  re- 
cover, and  also  restore  the  property  in  case  that  should  be  the 
iudgment  of  the  court,  the  defendant  omitted  to  pray  for  a  return, 
and  had  judgment  for  costs  oidy,  he  afterwards  brought  suit  on 
the  bond  for  a  failure  to  return,  and  it  was  held  he  could  not 
recover,  no  return  having  been  adjudged,  that  condition  was  not 
broken."^  Where  a  return  of  the  property  is  awarded,  the  se- 
curities have  a  right  to  make  it,  if  they  see  fit,  in  the  discharge 
of  their  obligation."*  Where  the  suit  wms  dismissed  before  the 
defendant  had  an  opportunity  to  claim  a  return,  the  fact  that  one 
had  not  been  claimed  could  not  be  made  use  of  to  defeat  the  suit 
on  the  bond.'"  The  suit,  in  such  case  would  properly  have  been 
on  the  failure  to  pro.secute  with  effect. 

'"Statutes  of  111. 

'"Brown  v.  Parker,  5  Blackf.  (Ind.)  291;  Potter  v.  James,  7  R.  I.  31?; 
Roman  v.  Stratton.  2  Bibb.   (Ky.)  199. 

"•Fullerton  v.  Miller.  22  Md.  5;  Tarpey  v.  Shillenberger,  10  Cal.  390; 
Clary  v.  Rolland,  24  Cal.  147;  Clark  v.  Norton,  6  Minn.  412. 

"=•  Pettygrove  v.  Hoyt,  11  Maine,  66;  Clark  v.  Norton,  6  Minn.  413. 
See  Branscombe  v.  Scarbrough,  6  Adol.  &  E.  (n.  s.)  13;  Chambers  v. 
Waters.  7  Cal.  390;  Mitchum  v.  Stanton,  49  Cal.  304;  Collins  v.  Hough, 
26  Mo.  150;  Balsley  v.  Hoffman,  13  Pa.  St.  606;  Miller  v.  Foutz,  2  Yeates, 
(Pa.)  418;  Nickerson  v.  Chatterton,  7  Cal.  568. 

'"  Kimmel  v.  KInt,  2  Watts,  432. 

'"  Mills  V.  Gleason,  21  Cal.  275. 


THE  BOND.  383 

§  430.  The  same.  Illustrations.  Where  the  condition  was 
to  pay  such  damages  as  should  be  adjudged,  the  bondsmen  were 
not  liable  for  those  which  accrued  prior  to  judgment  for  a  return^ 
unless  they  were  adjudged  against  their  principal  ui  the  replevin 
suit."*  The  principles  which  govern  in  such  cases  find  apt  illus- 
trations in  cases  other  than  in  those  on  replevin  bonds."'  When 
the  statute  under  which  an  appeal  was  taken  required  a  bond  to 
pay  whatever  jiidgment  might  be  rendered  upon  the  dismissal  or 
trial  of  the  appeal,  and  the  bond  sued  on  omitted  the  words  "  or 
irial,''^  the  court  said  :  "  The  point  is,  can  the  obligors  be  held  re- 
sponsible by  implication  beyond  the  express  terms  of  the  bond  ?  " 
ffeld,  that  though  not  conforming  to  the  statutory  form,  the  bond 
was  good,  as  a  voluntary  one  ;  that  the  obligor  could  not  be  bound 
for  anything  beyond  the  letter  of  the  contract.'-"  When  the  bond 
was  given  in  a  justice  court,  and  the  condition  was  for  a  return 
of  the  property,  if  return  ])e  adjudged  by  said  court,  etc. :  If<h7, 
that  under  this  form  the  securities  had  limited  their  liability,  and 
that  unless  the  return  Avas  awarded  by  the  justice,  the  securities 
were  not  liable,  even  though  a  return  had  been  awarded  by  the 
county  court. •'■ 

§  431.  The  same.  A  judgment  irregularly  entered  for  the 
value  of  the  property  replevied,  without  an  order  for  a  return, 
does  not  change  or  affect  the  liability  of  the  securities  upon  the 
condition  for  a  return,  though  an  order  for  a  return  may  not  be 
essential  to  entitle  the  party  to  an  action  upon  the  bond  for  a 
breach  of  other  conditions. '"- 

'"  Sopris  r.  Lilley,  2  Col.  498;  Kenley  v.  Commonwealth,  6  B.  Mon. 
(Ky.)  583.  [The  condition  to  pay  "  such  sums  as  for  any  cause  may  be 
recovered,"  covers  the  value  of  the  goods  if  they  are  not  returned,  Katz 
V.  HIavac,  88  Minn.  56,  92  N.  W.  50G.  Defendant  gives  a  bond  condi- 
tioned to  deliver  the  property  if  delivery  shall  be  adjudged,  and  for 
the  payment  to  plaintiff  of  such  sums  as  may  be  recovered  against  de- 
fendant; no  action  can  be  had  upon  this  bond  until  the  replevin  pro- 
ceed to  judgment  in  favor,  of  the  plaintiff,  Cheatham  v.  Morrison,  31  S. 
C.  326.  9  S.  E.  964.  The  condition  to  restore  the  property  "  If  return 
shall  be  adjudged  ",  constrrcd  to  import  if  return  be  adjudge. 1  by  a 
court  of  competent  jurisdiction.  Elder  v.  Greene,  34  S.  C.  154,  13  S.  E. 
323.] 

"•Wolfe  V.  McCluro,  79   111.  5t;4. 

'"Young  V.   Mason,    3  C.Uiu.    (111.)    67. 

"»  Mitchum  V.  Stanton,  49  Cal.  304. 

'"Mason  v.  Richards.   12   Iowa,  74. 


384  THE    l.AW    OF    REPLEVIN. 

§  432.  Any  material  alteration  in  the  bond  avoids  it.  Any 
material  altcnitioii  of  the  bond  without  tht;  {'oii.scnt  of  the  securi- 
ties ^vill  avoid  it.  Tluis,  when  llic  principal  erased  liis  name 
from  a  hond  to  a  I'nited  States  Marslial  without  the  consent  of 
his  securities,  but  with  the  consent  of  the  uiarslial,  it  operated  as 
a  n  lca.se  of  the  securities.'-'  In  case  a  new  defendant  is  substi- 
tsitcd  in  the  suit,  the  securities  are  under  no  obligation  to  him;''* 
but  the  substitution  by  the  court  of  the  real  defendant  (a  corpo- 
ration,) in  place  of  one  of  its  agents,  will  not  release  the  securi- 
ties.'" The  securities  are  not  liable  for  a  greater  sum  than  the 
penalty  of  the  bond  and  costs,  even  if  the  damages  should  exceed 
that  amount,'^'''  neither  are  they  liable  for  costs  of  the  replevin 
suit  unless  the  bond  expressly  so  provides,  or  some  statutory 
liability  attaches.'-" 

§  48:5.  The  same.  Security  bound  by  acts  of  the  princi- 
pal. Nevertheless,  the  securities  are  bound  by  all  the  steps  which 
their  principal  may  take  in  good  faith  for  the  success  of  his  suit 
in  court,  and  are  bound  by  the  result  of  that  suit.  If  the  court 
have  jurisdiction,  the  securities  are  bound  by  such  order  as  it 
may  make  in  the  case,  it  being  the  essence  of  the  contract  that 
the  security  is  answerable  for  his  principal's  conduct  in  the  suit 
before  judgment,  and  for  his  action  afterwards  within  the  scope 
of  the  bond.'=^ 

§  434.     But   a  settlement  does  not  bind  nor  discharge 

'"Martin  v.  Thomas,  24  How.    (U.   S.)    316. 

'-'•Smith  V.  Roby,  6  Heisk.  (Tenn.)  547. 

'=^Hanna  v.  International  Petroleum  Co.,  23  O.  St.  625. 

'-"Fraser  t'.  Little.  13  Misc.  195;  Nickerson  v.  Chatterton,  7  Cal. 
571. 

'■'Morrow  r.  Shepherd,  9  Mo.  216. 

'^-Pirkins  v.  Rudolph.  36  111.  310;  Burrall  v.  Vanderbilt,  1  Bos.  (N. 
Y. )  637.  [The  bond  was  conditioned  to  prosecute,  etc.,  make  re- 
turn, etc.,  and  pay  defendant  "  such  sums  as  for  any  cause  may  be 
recovered  against  plaintiff;  "  there  was  a  compromise  and  judgment 
given  that  plaintiff  pay  defendant  six  hundred  dollars  and  costs, 
and  the  judgment  was  entered  against  the  sureties  in  the  bond;  — 
held  the  sureties  were  bound  and  the  judgment  was  affirmed.  "  The 
sureties  assume  responsibility  for  whatever  may  be  legitimately  and 
bona  fide  adjudged  against  their  principal  who  alone  is  the  manager 
of  his  action  and  by  whose  judgment  they  must  abide,"  Council  v. 
Averett,  90  N.  C.  168.] 


THE  BOND.  385 

them.  A  settlement  or  adjustment  of  the  suit  by  agreement  of 
the  parties,  without  the  consent  of  the  securities,  will  not  bind 
them,  nor  will  it  necessarily  release  them  from  their  obligations."* 
"Where  it  was  stipulated  of  record  that  all  proceedings  in  replevin 
should  cease,  that  the  plaintiff  should  pay  a  certain  sum,  and  that 
the  bond  should  stand  for  security ;  held^  that  this  was  sufficient 
evidence  of  a  failure  to  prosecute,  and  that  the  securities  were 
liable  though  not  bound  by  the  stipulation.'^" 

§  435.  Submission  to  arbitration  does  not  bind  security. 
So  a  submission  to  arbitration  by  consent  of  the  parties  and 
without  the  consent  of  the  securities,  will  release  them ;  they 
Tvere  bound  that  the  plaintiff'  should  abide  all  orders  of  the  court 
properly  made,  but  they  were  not  bound  by  the  orders  of  another 
tribunal  to  which  the  case  is  submitted  by  agreement."' 

§436  Technical  defenses  to  bond  not  favored.  The  gen- 
eral  rule  is  well  settled  that  the  plaintiff  in  replevin  who  has  had 
the  property  delivered  to  him  on  his  writ,  cannot  dispute  the 
validity  of  the  bond  on  any  mere  technical  grounds,  or  for  any 
failure  to  comply  with  the  statutory  process  as  to  the  manner  of 
its  execution.  The  rule  in  all  such  cases  seems  to  be  based  on  the 
idea  that  the  party  who  has  obtained  delivery  of  the  property  by 
virtue  of  his  suit,  and  by  filing  his  bond,  has  had  all  the  benefit 
which  would  accrue  if  the  bond  had  been  formal,  and  is  estopped 
from  questioning  its  validity  on  the  ground  of  formal  or  technical 
defects.  The  defendant  cannot  be  allowed  to  plead  that  the  bond 
was  for  ease  and  favor,  and  unconstitutional.'"  In  Morse  v. 
ITodsdon,  5  Mass.  314,  and  in  Sbnonds  v.  Parker,  1  ]\Iet.  514,  the 
rule  is  strongly  laid  down  tliat  when  the  bond,  under  which  he 

'^  Moore  v.  Bowmaker,  (E.  C.  L.)  G  Taunt.  379;  Same  r.  Same.  7 
Taunt.  97;  Aldridge  r.  Harper,  10  Bing.  118;  Harrison  t;.  Wilkin,  69 
N.  Y.  413;   Coleman  v.  Wade.  2  Seld.    (N.  Y.)   44. 

'"Hailett  V.  Mountstephen.  2   Dow.  &  Ry.  343. 

"•  Pirklns  V.  Rudolph,  3G  111.  307.  Compare  Leighton  v.  Brown,  98 
Mass.  516. 

'"Compare  Weaver  v.  Field,  1  Blarkf.  335;  Magruder  v.  Marshall, 
1  Blarkf.  333;  Strong  v.  Daniel,  5  Ind.  348.  See,  also,  Parker  v. 
SimondH.  8  .Met.  211;  Wolfe  v.  MfCluro.  79  111.  564;  Gordon  i'.  Jenney. 
16  Mass.  46.').  Objection  that  the  condition  was  to  appear  at  county 
court,  whftn  th<To  was  no  surh  court,  wa.s  overruled;  the  judges 
holding  that  the  <:ourt  of  common  pleas  was  intended.  Arnold  r. 
Allen,  8   Mass.   149. 


386  Till-:    LAW    OF    REPLEVIN. 

liiis  obt'\ined  the  property,  has  been  voluntjirily  executed  by  the 
plaintilV,  he  can  not  avoid  it,  on  the  ground  that  it  does  not 
conform  to  the  statutory  requirements.'^'  So,  error  in  recital  of 
tlie  date  of  the  commencement  of  the  suit  in  repUn'in  is  immaterial, 
when  the  suit  and  the  property  are  sufficiently  described  to  in- 
dicate the  suit  whicli  was  intended.  Where  the  recital  was  that 
the  suit  was  commenced  on  or  about  the  3d  day  of  August,  wliile 
tlie  transcript  showed  tliat  it  was  commenced  on  the  20th  day  of 
August,  held  immaterial.'^* 

§  487.  The  same.  The  courts  have  ever  been  inclined  to 
hold  the  obligors  on  the  bond  to  a  strict  liability.  When  it  has 
been  given  and  the  property  taken,  no  technical  defects  not  going 
to  the  substance  of  the  contract  will  be  permitted  to  excuse  the 
makers,  neither  will  a  failure  of  the  defendant  to  take  advantage 
of  such  defects  in  the  replevin  suit  necessarily  prevent  him  from 
having  his  remedy  upon  the  bond."^  When  the  bond  is  given 
with  one  security,  and  the  statute  requires  two,  it  may,  never- 
theless, be  enforced,  though  not  such  a  bond  as  the  plaintifTliada 
right  to  demand.'""'  Where  the  signature  of  one  of  the  securities 
was  a  forgery,  the  bond  was  not  for  that  reason  void  against  the 
other ; '"  but  perliaps  he  might  have  shown  that  tlie  bond  was 
delivered  in  escrow  to  be  signed  by  the  others  if  such  was  the  fact. 
When  the  l)ond  is  for  less  than  double  the  value  of  the  property, 
(as  required  by  the  statute,)  it  is  not  therefore  void ;  defendant 
may  waive  the  defects  and  accept  it.'^^  When  the  securities  were 
excepted  to  by  the  defendant  under  a  statute  authorizing  such  ex- 
ception, and  they  failed  to  justify  ;  that  fact  does  not  relieve 
them  of  their  liability,  though  perhaps  the  substitution  of  new 
securities  under  such  circumstances  would.'^'    Where  the  prin- 

'"But,  see  Purple  v.  Purple,  5  Pick.  226. 

'"Graves  v.  Shoefelt,  60  111.  464.  Bond  adjudged  void  is  no  bar 
to  an  action  on  the  case  for  the  value  of  the  goods.  Magill  v.  Casey, 
1   Day,   (Conn.)    13. 

'"O'Grady  v.  Keyes,  1  Allen,  (Mass.)  284. 

•"Wolcott  V.  Mead,  12  Met.  518;  Shaw  v.  Tobias,  3  Comst.  (N.  Y.) 
192. 

'"Bigelow  V.  Comegys,  5  Ohio  St.   256. 

"»Rodesbaugh  v.  Cady,  1  West  L.  M.    (Ohio,)    599. 

""Van  Duyne  v.  Coope,  1  Hill,  557;  Decker  v.  Anderson,  39  Barb. 
347. 


THE  BOND.  .  387 

cipal  agreed  to  give  time  or  to  stay  execution,  such  agreement 
did  not  release  the  securities  unless  the  agreement  created  an 
absolute  disability  on  the  part  of  the  payee  to  proceed.'*"  Where 
the  plamtiff  in  the  replevin  suit  has  obtained  possession  of  the 
property  under  the  writ,  neither  he  nor  his  securities  can  be  per- 
mitted to  allege  in  an  action  on  the  bond  that  no  suit  in  replevin 
was  pending,  because  no  summons  was  issued.'" 

§  438.  The  liability  of  a  guardian  personal.  Where  a 
guardian  sued  out  a  writ  of  replevin  for  goods  belonging  to  his 
ward,  and  gave  bond  in  his  own  name,  he  was  held  individually 
liable,  and  could  not  set  up  his  guardianship  to  defeat  the  suit.'" 

§  439.  Where  the  words  are  ambiguous,  the  intent  will 
govern.  When  the  words  of  the  bond  are  not  explicit,  or,  if 
construed  literally,  would  mean  nothing,  they  must  be  construed 
with  reference  to  the  intent  of  the  parties,'*-'  and  if  such  intent 
can  be  gathered  from  the  terms  of  the  bond  and  the  situation  of 
the  parties,  it  will  control.  AVhen  the  bond  was^  that  if  JVorfh, 
(plaintiff,)  prosecute,  etc.,  or  in  case  of  failure  shall  pay  such 
damages  as  the  said  JVorth  shall  recover,  etc.,  /leld,  that  this  must 
be  regarded  as  a  clerical  error,  the  presumption  being  that  tlie 
bond  was  given  in  good  faith,  and  such  a  construction  should  be 
given  as  would  render  it  available  for  the  purpose  for  wliicli  it 
was  intended.'"  When  the  condition  of  the  bond  was  that  it 
should  be  void  if  the  obligor  should  "  not''''  pay,  etc.,  the  palpable 
error  in  the  introduction  of  this  word  was  not  permitted  to  defeat 
what  must  have  been  the  true  intent  of  the  parties.'"  So  when 
the  word  "  pounds  "  was  omitted,  Lord  Tkxtkrtox  said :  "  The 
bond  was  intended  to  secure  various  sums  stated  in  the  recitals, 
in  pounds  sterling,  so  I  cannot  doubt  the  obliger  should  be  Iield 
to  pay  pounds  sterling  on  this  bond."  '*"  When  the  l)ond  was 
signed  by  i)I;iintiff  in  replevin  after  tlie  writ  was  served,  he  will 

'"Tousey  v.  Bishop,  22  Iowa.  178. 

"'Reeves  v.  Reeves,  33  Mo.  28;  Sammons  v.  Newman,  27  Ind. 
508. 

'"Oliver  r.  Townsend,  IC  Iowa.  430. 

'"Teall  V.  Van  Wyck,  10  Barb.  377. 

'"fJroen  r.  Walker.  37  Me.  27.  See  Butler  v.  WIgge,  1  Saund.  65; 
Waugh  V.   BuHsel.  r>  Taunt.  707. 

'"Bathe    v.    Proctor.    iJoug.    (Eng.)    367. 

"•Coles  V.  Hulme,  8  Barn.  &  Creas.  568. 


388  THE    LAW    OF    REPLEVIN. 

not  be  permitted  to  set  that  up  to  defeat  his  own  bond.'"  All 
these  cases  proceed  upon  Die  ground  that  the  plaintiff  ouglit  not 
to  be  suffered  to  avail  himself  of  the  writ  to  obtain  the  goods,  and 
then  be  relieved  of  the  obligation  to  respond,  unless  the  error  be 
fundamental. '*"  Hut  when  the  bond  did  not  contain  tlie  name  of 
the  ilefendant  in  the  suit,  it  was  void,  and  the  defect  could  not  be 
cured  by  averment  or  proof.  Thus,  Avhen  suit  was  brought 
against  the  sheriff  for  a  failure  to  take  bond  as  required  by  the 
statute,  the  defendant  pleaded  that  he  did  take  bond,  which  he 
set  out  at  length,  but  the  bond  set  out  failed  to  show  that  the 
defendant's  name  was  inserted  therein,  or  that  any  language  was 
used  from  which  it  could  be  ascertained  in  what  suit  the  bond 
was  given.     Demurrer  to  the  plea  was  properly  sustained.'*' 

§  440.  Proceedings  on  the  bond  governed  by  statute. 
Provision  is  made  in  some  of  the  States  for  a  summary  pro- 
ceeding '•'•"  on  the  bond.  In  Wisconsin,  the  securities  are  so  far 
regarded  as  parties  to  the  suit  as  to  authorize  judgment  against 
them  in  the  replevin  proceedings  ;  '^'  and  the  obligee  may  sue  in 
the  name  of  the  sheriff  for  his  use.'"  These  proceedings  are  gov- 
erned by  tlie  local  law,  and  can  only  be  resorted  to  when  the  bond 
is  in  strict  conformity  thereto.'^ 

•"Cady  V.  Eggleston,  11  Mass.  285;  Nunn  v.  Goodlett,  5  Eng.  (Ark.) 
100;    Reeves   v.  Reeves,   33   Mo.   28. 

""Buck  V.  Lewis,  9  Minn.  317;  Jennison  v.  Haire,  29  Mich.  214; 
Decker  v.  Judson,  16  N.  Y.  439;  Shaw  v.  Tobias,  3  Comst.  192;  Moors  v. 
Parker,  3  Mass.  310.  [Where  the  plaintiff  in  replevin  representing  that 
the  replevin  bond  has  been  lost,  files  a  copy  thereof  under  leave 
granted  by  the  court,  the  surety  not  objecting,  an  action  lies  thereon 
as  upon  the  original.     Fleet  v.  Hertz,  201  111.  594,  66  N.  E.  858.] 

'"  Arter  v.  The  People,  etc.,  54  111.  228.  This  case  was  subsequently 
cited  and  approved  in  Matthews  v.  Storms,  72  111.  321.  See  Smith  v. 
Roby,  6  Heisk.  549. 

'^  Stat.  Missouri.  Contra,  see  Gay  v.  Morgan,  4  Bush.  (Ky.)  606; 
Hurd  V.  Gallaher,  14  Iowa.  394. 

"'  Manning  v.  Pierce,  2  Scam.  6.  See  Gould  v.  Warner,  3  Wend.  54. 
Contra,  in  North  Carolina,  where  the  remedy  is  by  sci.  fa.  Summers 
V.  Parker,  Taylor's  N.  C.  Term  Rep.  147. 

''' Hunter  v.  Sherman,  2  Scam.  544;  2  Ch.  Plead.  464.  See  Keyes  v. 
McNulty,  14  Iowa,  484. 

'■"Hunter  v.  Sherman,  2  Scam.  544;  2  Chit.  Plead.  460;  Perreau  v. 
Bevan,  5  B.  &  Cress.  284;  Axford  v.  Perrett,  4  Bing.  586;  Harvy  v. 
Stokes,  Willes,  6;  Peck  v.  Wilson,  22  111.  205;  Hopkins  v.  Ladd,  35 
111.  180. 


THE  BOND.  389 

§  441.  Debt  a  proper  fofm  of  action  thereon.  Debt  is  a 
proper  form  of  action  on  a  replevin  bond  in  States  where  the 
distinction  between  actions  is  preserved.'"  The  usual  form  of 
declaration  in  debt  upon  a  penal  bond  will  be  sufficient  with  the 
assignment  of  such  breaches  of  the  conditions  as  the  pleader  de- 
sires and  expects  to  sustain  by  proof.  The  assignment  of  the 
breaches  is  simply  a  statement  that  the  defendant  has  not  per- 
formed the  conditions  which  were  essential  to  be  kept  to  excuse 
the  obligors  from  the  payment  of  the  penal  sum  named  in  the 
bond.  The  breaches  need  not  be  assigned  in  broader  terms  than 
the  conditions.'^^ 

§  442.  Assignment  of  the  breaches.  Neither  is  the  assign- 
ment of  the  breach  required  to  be  in  any  formal  or  technical  man- 
ner. An  assignment  which  sufficiently  shows  that  the  obligors 
have  not  kept  one  or  more  of  the  conditions  is  sufficient.  Thus, 
when  the  condition  was  to  prosecute  the  suit  with  effect  ah  as- 
signment that  the  defendant  did  not  prosecute  the  replevin  suit 
with  effect,  but  failed  so  to  do,  in  the  words  of  the  condition  will 
be  sufficient.'^ 

§  443.  Proceedings  in  the  replevin  essential  to  sustain 
suit  upon  the  bond.  The  proceedings  in  the  replevin  suit  are 
essential  to  sustain  suit  upon  the  bond.  The  records  of  the  re- 
plevin suit  need  not  be  set  out  in  the  declaration  on  the  bond, 
but  the  proceeding  should  be  recited,'"  and  the  judgment  in  that 
suit  stiited,'^  the  record  in  the  replevin  suit  is  proper  evidence  to 
sustain  the  averment  in  the  declai'ation.''' 

§  444.  The  material  facts  to  be  set  up.  The  material  facts 
to  l)e  alleged  in  a  suit  on  the  replevin  bond  are  manifestly  the 
termination  of  the  replevin  suit,  judgment  for  the  defendant,  and 
an  order  for  a  return  of  the  property,  if  that  be  the  fact.  When 
the  declaration  upon  the  bond  alleged  concerning  the  replevin 

^  Pratt  V.  Donovan,  10  Wis.  378.  See  Hershler  v.  Reynolds,  22  Iowa. 
152;    Crites   v.   Littleton,   23    Iowa.   205. 

"•Humphrey  v.  Taegart,  38  111.  228. 

'■'•  WooldrlflKe  v.  Qulnn,  49  Mo.  427;  Miller  v.  Commissioners  of 
MontKomrry  Co.,  1  Ohio.  271;   Humphrey  v.  TaKRart,  38  III.  228. 

'"Gould  V.  Warner.  3  Wend.  .''.7;  KIdrcd  v.  Hennett.  33  Pa.  St.  183; 
Sand.  PI.  and  Ev.  7C9;  McGlnnls  v.  Hart,  «  Iowa,  204;  Dhis  v  Fr.'tMii:in. 
5  T.  R.  195  and   104. 

"•Nunn   t'.   Goodlett.   5   Eng.    (Ark.)    89. 

"•McGlnnls  v.  Hart,  6  Iowa,  208. 


C90  THE    LAW    OF    REPLEVIN. 

suit,  that  '•  said  cause  coining  for  iriul,"  it  was  considered  and 
adjudged  by  said  circuit  court,  tluit  "  the  said  Stevison  take  noth- 
ing by  his  said  writ,  but  that  he  and  his  pledge  to  prosecute  be 
in  mercy,"  and  further,  at  the  same  time  the  court  awarded  a 
return  of  sai(i  goods,  etc.,  and  gave  judgment  for  the  defendants 
for  one  cent  damages  and  costs  of  suit — the  record  read  in  evi- 
dence to  sustain  the  averment,  after  reciting  that  a  previous  order 
liad  been  made  rctjuiring  tlie  plaintiff  to  give  security  for  costs, 
and  that  a  motion  to  dismiss  for  non-compliance  with  that  order 
liad  been  made,  proceeded  :  "  It  is  ordered  by  the  court  that  said 
motion  be  sustained,  and  that  this  suit  be  dismissed  at  plaintiff's 
costs,  and  that  a  writ  of  retorno  Jiabeudo  issue  herein,  and  judg- 
ment for  costs  " — it  was  held,  no  substantial  variation  from  the 
declaration."^  When  the  law  permits  the  defendant  to  give  bond 
and  retain  the  property,  it  is  essential  to  aver  that  the  property 
Avas  delivered,  delivery  necessarily  preceding  liability  upon  the 
bond  ;  ""  even  when  there  is  no  evidence  that  any  bond  was  given, 
it  must  be  presumed  that  property  remained  with  the  defendant, 
and  a  finding  in  his  favor  will  not  authorize  a  judgment  for  a 
return  without  proof  that  the  property  was  delivered  on  the 
writ.""'*  It  need  not  be  averred  that  the  writ  was  directed  to  the 
coroner.  If  it  show  that  the  coroner  took  the  goods  upon  the 
writ,  it  is  prima  facie  that  the  writ  was  directed  to  him  ;  ""  neither 
is  it  necessary  to  aver  that  the  bond  was  taken  in  compliance 
with  the  statute,'"  but  the  declaration  must  state  the  plaintiff's 
damages.'" 

§  445.  When  bond  is  lost  from  the  files.  Where  the  bond 
has  been  lost  from  tlie  files,  it  cannot  be  replaced  by  a  substitute 
without  tlie  approval  of  the  court;  neither  the  party  nor  the 
clerk,  without  the  sanction  of  the  court,  can  substitute  a  paper 
purporting  to  be  a  copy,  unless  in  compliance  with  an  order  for 
that  i)urposo."''"' 

§  446.     Defenses  to  suit  on  bond.      In  an  action  upon  the 

""Stevison  v.  Earnest.  80   II].  517. 

'"  Nickerson  v.  Chatterton,  7  Cal.  570.  See,  also,  Bolander  v. 
Gentry,  36  Cal.  110. 

'"McKeal   v.   Freeman,   25   Ind.   151. 

'"Shaw  V.   Tobias,   3   Comst.    (N.   Y.)    191.  ! 

'"Shaw  V.  Tobias,  3  Comst.  (N.  Y.)   191. 

'"Arnold  v.  Allen,  8  Mass.  149. 

"•Farrow  v.  Orear,  2  Duv.  (Ky.)  261. 


TKB  BOND.  391 

bond,  the  defendant  who  has  availed  himself  of  its  benefits  by 
obtaining  property'  under  it,  cannot  defeat  his  liability  by  plea 
that  the  bond  was  given  for  ease  and  favor,  or  that  the  law  was 
unconstitutional ;  '*'  neither  can  he  be  permitted  to  plead  that  he 
was  not  indebted,'*'  nor  show  a  want  of  jurisdiction  in  the  court 
before  whom  the  replevin  suit  was  tried.""''  In  Roman  v.  Strat- 
ton,  2  Bibb,  (Ky.)  199,  the  court  held  that  irregularities  of  the 
plaintiff  in  the  procurement  of  the  writ  or  the  prosecution  of  the 
replevin  suit,  would  not  excuse  him  from  liability  on  his  bond ; 
and  this  case  was  cited  with  approval  in  a  leading  case  in  Arkan- 
sas.'™ To  permit  the  party  to  avail  himself  of  this  objection 
Avould  be  to  allow  him  to  take  advantage  of  his  own  wrong.  Tlie 
bond  was  the  plaintiff's  voluntary  bond,  delivered  to  the  officer, 
upon  which  he  obtained  possession  of  the  goods,  and  he  and  his 
securities  must  abide  it ;  '"  and  this  rule  applies  generally  to  the 
defense  of  instruments  of  this  character."-  The  defendant  in 
replevin  may  waive  all  defects  in  the  bond  which  do  not  go  to 
the  substance  or  defeat  his  right  of  action,  and  enforce  tlie  bond 
against  the  principal  and  securities.'"'  So  where  the  securities 
are  excepted  to  and  fail  to  justify,  it  will  not  defeat  the  plaintiff's 
right  to  recover,  as  though  exceptions  had  not  been  taken.'"*  The 
defendant  in  replevin  is  in  all  cases  liable  to  the  judgment  au- 
thorized by  law,  without  any  reference  to  the  conditions  of  the 
bond.  The  bond  fixes  the  liability  of  the  securities.'"'^  When 
the  securities  are  excepted  to  and  fail  to  justify,  such  failure  does 
not  discharge  them.  Query,  as  to  whether  the  substitution  of  a 
new  ])ond  would  l)e  a  discharge  of  the  securities  on  the  old.'"'"' 

§  447.  When  ownership  of  property  is  settled  in  the  re- 
plevin suit.  When  the  ownersliip  of  tlio  property  has  l)een 
determined  in  tlie  rei)levin  suit,  it  is  regarded  as  settled;  and  in 

'"Magruder  v.  Marshall,  1   niackf.  333. 

'"Warner  v.   Matthew.s.   18  111.  83. 

••McDermott  v.   Isbell.   4   Cal.   113. 

"•Nunn  V.  Goodlett.  fj   Eng.   (Ark.)   90. 

'"Roman  v.  Stratton,  2  Bibb,  (Ky.)  199;  Morse  v.  Hodsdon.  H  Mass. 
314. 

'"Pant  r.  Wilson.  3  Mon.   (Ky.)   342. 

"•Shaw  V.  Tobias,  3  Coradt.  (N.  Y.)  188;  Wolcott  v.  Mead.  12  Met. 
(MaHs.)   517. 

"•Decker   v.   Anderson,   :{9    Barb.    347. 

"•Crf-amfr  r.  Ford,  1   Hflsk.  308. 

"•Van  Duyne  v.  Coope.  1   Hill,  559, 


392  THE    LAW    OF    REPLEVIN. 

a  suit  upon  the  bond  in  such  a  case,  a  plea  that  the  defendant, 
the  plaint itf  in  the  replevin  suit,  is  the  owner  of  the  property,  is 
bad.'"  So,  also,  of  a  plea  of  property  in  a  third  person; '"*  and 
in  fact  all  questions  determined  in  the  replevin  suit  are  regarded 
as  rix  infjudicattt,  and  cannot  be  inquired  into  in  suit  upon  the 
bond.'"' 

§  448.  When  not  so  settled,  it  may  be  set  up  in  suit  on 
the  bond.  But  when  the  title  and  right  of  possession  are  not 
settled  in  the  n-plevin  suit,  defendant  to  suit  on  bond  may  i)lead 
that  fact,  and  that  the  ownership  and  right  of  possession  are  in 
him,  and  a  plea  to  all  but  nominal  damages  would  be  sufficient."^ 
Under  the  statutes  of  Illinois,  the  defendant  pleaded  to  an  action 
upon  the  bond  that  the  property  in  the  replevin  suit  was  his,  and 
that  the  merits  of  the  case  were  not  tried  there,  but  that  the  re- 
turn was  awarded  only  because  the  plaintiff  failed  to  prove  a 
demand."*'  Such  a  plea,  however,  must  affirmatively  show  that 
the  case  is  within  the  provisions  of  the  statute  by  clear  and  dis- 
tinct averments  ;  also,  that  the  merits  were  not  determined  in  the 
replevin  suit ;  and  such  a  plea,  it  seems,  should  admit  nominal 
damages."" 

§  449.  Defenses  which  should  be  made  in  the  replevin 
suit.  Plea  that  one  of  the  defendants  had  carried  away  the 
property  and  converted  it  to  his  use,  is  bad.  The  defense  should 
have  been  made  in  the  replevin  suit,  and  then  no  return  wf)uld 
have  been  awarded  ;  or,  perhaps  the  same  facts  might  sustain  a 
plea  that  the  property  was  returned.'*'  So,  also,  plea  that  the 
judgment  in  the  replevin  was  obtained  by  fraud ;  "*  or,  that  the 

'"Sherry  v.  Foresman,  6  Blackf.  56;  Davis  v.  Crow,  7  Blackf.  130; 
Williams  v.  Vail,  9  Mich.  162;  Cushenden  v.  Harman,  2  Tyler,  (Vt.) 
431. 

'■'Smith  V.  Lisher.  23  Ind.  504. 

'''Denny  v.  Reynolds,  24  Ind.  248;  Wallace  v.  Clark,  7  Blackf. 
298. 

'^Stockwell  V.  Byrne,  22  Ind.  9.  See  Wiseman  v.  Lynn,  39  Ind.  250; 
Davis  V.  Harding,  3  Allen,  302;  Belt  v.  Worthington,  3  Gill.  &  J.  (Md.) 
247;   Hawley  v.  Warner,  12  Iowa,  42. 

'-'The  plea  is  set  out  in  foil  in  Chinn  v.  McCoy,  19  111.  60G.  See 
Laws  111.,  1847,  p.  62;  Rev.  Stat.  111.  1874,  853;  Warner  v.  Matthews, 
18    111.    83. 

'-^King  V.  Ramsay,  13  111.  622. 

'^Buckmaster  v.  Beames,  4  Gilm.  (111.)  443;  Sherry  v.  Foresman,  6 
Blackf.  58. 

"^Huttqn  V.  Denton,  2  Carter,  (Ind.)  644. 


THE  BOND,  393 

suit  in  replevin  was  dismissed  by  agreement,  is  bad.'*^  A  plea 
which  sets  up  a  return  to  the  slieritf,  and  does  not  answer  the 
part  which  charges  failure  to  prosecute  with  effect,  is  bad,'^ 
though  a  return  may  be  pleaded  in  mitigation  of  damages. 

§  4o0.  Miscellaneous  rules  in  suits  on  bond.  It  is  a  gen- 
eral rule  that  the  defendants  to^suit  on  bond  cannot  set  up  any 
irregularities  in  the  replevin  suit  in  order  to  defeat  suit  on  the 
bond.'*'  When  the  practice  act  required  an  affidavit  of  merits  to 
a  plea  in  an  action  upon  a  contract  for  payment  of  money,  a  plea 
to  suit  on  a  replevin  bond  was  properly  filed  without  affidavit.'^ 
Where  the  issues  in  the  replevin  suit  involved  title  to  the 
property,  and  a  verdict  was  given  for  the  defendant  in  a  suit 
upon  the  bond,  the  defendant  could  not  set  up  a  new  title  ac- 
quired after  the  bond  was  given  ;  ""  but  may  show  that  since  the 
judgment  for  the  return,  the  interest  of  the  plaintiff  has  ceased  in 
mitigation,  but  not  in  bar  of  damages  ;  or,  that  the  property  will 
at  once  revert  to  the  defendant ; ""  or,  he  may  plead  set  off,  the 
suit  upon  the  bond  being  an  action  on  a  contract,  subject  to  set 
off  like  other  actions,  though  replevin  is  not  subject  to  set  oft" ;  '*" 
or,  may  plead  performance  of  the  condition  of  the  bond,  and 
require  the  plaintiff  to  state  the  breaches  of  the  condition  upon 
which  he  expects  to  rely  ;  '"■  or,  a  release  of  all  demands  executed 
by  tlie  plaintiff  in  the  suit  on  the  bond,  to  the  principal  obligor 
thereon,  is  a  release  of  the  bond.'"  A  judgment  for  costs  only  in 
the  replevin  suit,  and  return  of  execution  thereon  satisfied,  is  a 
discharge  of  the  .securities."*  To  suit  on  bond  the  defendant 
pleaded:  1.  Non  damificatifs.  2.  If  the  plaintiff  was  injured  it 
was  by  his  own  wrong.     3  and  4.  That  the  goods  belonged  to  the 

'"O'Neal  V.  Wade.  3  Porter,  (Ind.)  410. 

"•Gould  V.  Warner,  3  Wend.  CI. 

'"Jennlson  v.  Haire,  29  Mich.  207;  Decker  v.  Judson,  16  N.  Y. 
439;  Shaw  v.  Tobias,  3  Conast.  192;  Moors  v.  Parker,  3  Mass.  310; 
Duck  V.  Lewis,  9  Minn.  317. 

'"Peck  V.  Wilson,  22   111.   20C. 

'•Carr  v.   Ellis.  37   Ind.  465. 

"•Tuck  V.  Moses,  58  Maine,  461. 

'•' Balsley  v.  Hoffman,  13  Pa.  St.  612;  Miller  v.  Foutz,  2  Yeates. 
418. 

""Doogan  v.  Tyson.  6  fill!.  &  .1.  (.Md.)  453. 

'"Thomas  v.  Wilson,  6  Hlackf.  (Ind.)  203;  Cocks  r.  Nash,  9  Blng. 
341;    Tuttio   r."  Cooper.   10   Pick.   281. 

'"Mlllctt   V.   Hayford.   1    Wis.   401. 


394  THE    LAW    OF    REPLEVIN. 

principal  obligor.  5.  That  tlio  iiiiicipal  obligor  was  ready  and 
willing  to  prosecute  his  suit  with  effect,  but  that  the  court  at  the 
instance  of  the  plaintiff  dismissed  the  suit  for  want  of  jurisdiction 
on  account  of  defects  apparent  in  the  affidavit  and  the  writ,  and 
that  no  damages  were  recovered  in  the  replevin  suit ;  nor  was  a 
return  of  property  awarded.  6.  That  the  bond  was  executed 
without  consideration.  7.  That  the  consideration  was  illegal. 
8.  No  record  of  the  replevin  suit.  On  demurrer  the  court  held 
these  pleas,  except  the  last,  were  bad."^ 

§  451.  Variation  between  the  bond  and  affidavit  in  de- 
scription, no  defense.  A  variation  in  description  between  the 
property  in  the  affidavit  and  the  bond,  will  be  no  defense  to  suit 
on  bond.  That  should  have  been  pleaded  in  the  replevin ;  "* 
ncitlier  can  the  defendant  to  suit  on  bond  be  permitted  to  object 
to  tlie  judgment  in  the  replevin  suit,  on  the  ground  that  the  writ 
issued  without  an  affidavit ;  that  the  court  would  in  the  absence 
of  the  affidavit  from  the  record,  presume  tliat  it  was  properly 
filed;  or,  if  not,  will  not  permit  a  plaintiff  in  replevin,  who 
managed  the  case  and  wlio  obtained  the  property,  to  reap  all  the 
benefits  of  his  suit  and  then  escape  liability  in  a  suit  on  his  bond, 
on  the  ground  that  he  procured  the  writ  and  obtained  delivery  of 
the  property  without  affidavit,  or  committed  other  irregularities 
to  defeat  it ; ""  neither  will  the  fact  that  the  defendant  has  col- 
lected his  costs  in  the  replevin  suit.  The  conditions  of  the  bond 
are  separate,  and  the  collection  of  costs  is  not  a  surrender  of  his 
riglit  of  action."" 

ij  452.  Submission  of  the  replevin  suit  to  arbitration,  a 
defense.  l>ut  a  submission  of  the  replevin  to  an  arbitration  by 
agreement  of  the  parties  without  the  consent  of  the  securities, 
will  discharge  the  latter.  Had  the  suit  been  prosecuted,  the  court 
might  have  awarded  a  return.  This  would  have  enabled  the 
securities  to  take  steps  for  a  deliverance.  They  did  not  agree  to 
return  without  an  investigation,  and  were  entitled  to  have  that 
investigation  under  the  forms  of  trial  by  the  court  and  jury.'®® 

'"  Sherry  v.   Foresman,   6   Blackf.   56. 

""McDermott  v.  Doyle,  11  Mo.  443. 

"•  Jennison  v.  Haire,  29  Misc.  208. 

'"Kafer  v.  Harlow,   5  Allen,  348. 

'"Pirkins  v.  Rudolph,  36  111.  312;  Moore  v.  Bowmaker,  6  Taunt.  379; 
Aldridge  v.  Harper,  10  Bing.  118;  Coleman  v.  Wade,  2  Seld.  (N.  Y.), 
44;  Bowmaker  v.  Moore,  1  Exch.  R.  355. 


THE  BOND.  395 

§  453.  Value  of  the  property  stated  in  bond ;  how  far 
binding.  The  phuntitf  in  replevin  wlio  fixed  the  vahie  of  the 
property  as  stated  in  the  bond,  is  bound  by  that  vahie,  and  es- 
topped from  questioning  it,  when  sued  on  the  bond  ;  ''*°  and  as  a 
usual  thing,  such  value  also  concludes  the  sureties  who  sign  the 
bond,  but  the  defendant,  in  replevin,  had  no  concern  in  fixing  the 
value,*"'  and  is  not  bound  by  any  of  the  recitals  in  the  bond ; 
neither  will  an  appraisement  of  the  value  under  a  statute  author- 
izing it,  be  binding  on  the  parties.™' 

§  454.  Where  the  value  of  a  number  of  articles  is  stated 
at  a  gi'oss  sum.  When,  as  is  sometimes  the  case,  a  number  of 
articles  are  replevied,  and  the  bond  sets  out  the  aggregate  value, 
and  some  are  returned  and  some  are  not,  the  recital  of  the  ag- 
gregate value  in  the  bond  affords  no  information  as  to  the  value 
of  separate  articles ;  the  plaintiff  in  the  suit  must  show  the  actual 
value,  or  he  can  have  but  nominal  damages.'"' 

§  455.  Effect  of  the  destruction  of  the  property.  The 
conditions  of  the  bond  sometimes  become  impossible  to  perform 
by  the  death  or  destruction  of  the  chattel.  When  domestic 
animals  are  the  subject  of  the  action,  they  are  liable  to  die ;  in 
fact,  all  chattels  are  liable  to  be  destroyed  pending  the  suit.""*  If 
the  pos.session  of  the  defendant  be  wrongfully  acquired,  in  violation 
of  a  trust,  or  by  fraud  or  force ;  or,  wlicre  the  claim  is  charac- 
terized by  tort  and  injustice,  he  cannot  shield  himself  from  pay- 
ment of  value,  even  though  the  property  may  have  been  destroyed.*"* 

=*■  Wiseman  v.  Lynn,  39  Ind.  259;  Trimble  v.  State,  4  Blackf.  435; 
May  V.  Johnson,  3  Ind.  449;  Guard  v.  Bradley,  7  Ind.  GOO;  Sammons  v. 
Newman,  27  Ind.  508;  German  Ins.  Co.  v.  Grim,  32  Ind.  249;  Mattoon 
V.  Pearce.  12  Mass.  400;  Gibbs  v.  Bartlett,  2  W.  &  S.  (Pa.)  34;  Clap  v. 
Guild,  8  Mass.  153. 

"'Howe  V.  Handley,  28  Me.  251;  MelvIn  r.  Winslow,  10  Me.  397; 
Parker  v.  Slmonds,  8  Met.  205;  Thomas  v.  Spofford.  46  Me.  410;  Tuck  v. 
Moses,  58  Me.  477.  See  In  this  connection,  Leonard  v.  Whitney,  109 
Ma.ss.  2G5;  Wright  v.  Quirk,  105  Mass.  48;  Stevens  t'.  Tuite,  104  Mass. 
328.  "The  sum  named  in  the  bond  as  tho  value  of  the  Koods,  is 
sufflrient  evidence,  though  not  absolutely  conclusive  on  the  makers." 
Clap  V.  Guild,  8  Ma.ss.  153;  Mattoon  v.  Pearce.  12  Mass.  400;  Wright  v. 
Quirk.  105  .Mass.  48. 

™Kafer  v.  Harlow,  5  Allen,  (Mass.)  348;  Lelghton  v.  Brown,  98 
MaHH.  515. 

*"SoprlB  V.  Lllley,  2  Col.  498. 

"^  Carpenter  v.  Stevens,  12  Wend.  589. 

••Porter   v.   Miller,  7   Tex.   480.     See  title,   Damages;    vosl.     Ah   to 


396  THE    LAW    OF    REPLEVIN. 

§  450.  Parties  to  suit  on  bond  cannot  discharge  it  to  the 
injury  of  the  sheriff.  In  f^uit  ou  bond,  by  llic  sheiill',  he  sues  for 
his  own  pvott-etion  ;  and,  if  this  be  pending,  the  defendant  cannot 
release  the  bond,  the  sheriff  having  become  responsible  for  costs. 
A  release  of  the  bond  before  suit  would  extinguish  it ;  the  sheriff 
would  have  no  further  interest  in  it,  and  would  stand  discharged 
from  his  liability."^  If  the  suit,  however,  has  been  begun  by  the 
defendant  in  replevin  in  his  own  name,  he  may  release  the  bond, 
as  in  that  case  he  alone  is  liable  for  costs.^'  The  judgment  for 
return  cannot  be  impeached  upon  the  ground  of  fraud  on  the  part 
of  the  plaintiff  in  letting  tlie  judgment  go.'""* 

§  457.  Damages  on  bond  ;  how  assessed.  In  an  action  on 
the  bond,  the  damages  are  assessed  on  the  principle  of  compensa- 
tion. The  sum  named  in  the  bond  is  usually  regarded  as  a 
penalty,  and  upon  payment  of  a  sum  sufficient  to  compensate  the 
obligor  for  the  loss  he  has  sustained,  the  bond  will  be  discharged. 
By  the  common  law  the  makers  of  the  bond  were  liable  for  the 
full  amount  of  the  penalty  named,  but  in  case  of  hardship  chancery 
frequently  interposed  relief;  and  at  length,  by  the  statute,^"'  it 
was  provided  that  in  actions  on  bonds  with  penalties,  the  defend- 
ant might  pay  the  principal  debt,  with  interest  and  costs,  and  the 
penalty  might  be  discharged.''"  The  judgment  is  for  the  full 
penalty  of  the  bond,  but  the  judgment  is  usually  accompanied  by 
an  order  that  it  be  satisfied  by  the  payment  of  a  less  sum,  which 
is  fixed  at  the  amount  of  damages  the  plaintiff  has  sustained.'" 

damages  for  breach  of  contract  occasioned  by  the  act  of  God,  see 
Sedgwick  on  Dam.,  6  Ed.,  p.  255,  note  2. 

^Armstrong  v.  Burrell,  12  Wend.  302. 

*<"  Armstrong  v.  Burrell,  12  Wend.  302. 

=«"  Walls  V.  Johnson,   16   Ind.  374. 

«»4  Anne,  Chap.  16,  §§  12  and  13. 

'■"See  Stat.  8  and  9  Will.  3,  Ch.  11,  §  8.  When  the  judges  refused 
to  grant  relief  at  law,  after  forfeiture  of  bonds,  upon  payment  of  the 
principal,  interest  and  costs,  Sir  Tiiom.\s  Moore  swore  by  the  body  of 
God  he  would  grant  an  injunction.  Wyllie  v.  Wilkes,  Doug.  (Eng.) 
523,  (505.)  The  statutes  in  several  of  the  States  limit  the  recovery 
on  the  bond  to  compensation  for  such  damages  as  have  been  sus- 
tained in  consequence  of  the  breach  of  the  conditions.  R.  S.  111.  1874, 
p.  853.  §  ?5. 

"'Gould  V.  Warner,  3  Wend.  54;  Hunter  v.  Sherman,  2  Scam.  544; 
Odell  V.  Hole,  25  111.  208;  Frazier  v.  Laughlin,  1  Gilm.  347;  March  v, 
Wright,  14  III.  248;   Toles  v.  Cole,  11  111.  562. 


THE  BOND.  397 

The  bond  in  replevin  is  statutory,  and  is  properly  classed  with 
other  statutory  bonds  given  to  secure  the  defendant  against 
damages  resulting  from  the  wrongful  use  of  a  provisional  remedy. 
As  such,  the  remedy  upon  the  bond  is  governed  by  the  same 
principles  substantially  as  those  which  govern  in  the  case  of  in- 
junction and  attachment  bonds.  The  sum  named  as  the  penalty 
is  for  the  purpose  of  indemnity  only,  not  the-measure  of  the  in- 
jured party's  right  of  recovery,  when  his  actual  damage  is  less 
than  that  sum.  The  value  of  the  goods  which  have  been  ordered 
to  be  returned,  and  have  not  been  restored  in  compliance  with 
the  order,  Math  interest,  will  usually  be  the  measure  of  damages 
in  such  cases."* 

§  458.  The  same  ;  amount  of.  The  amount  of  damages  in 
an  action  on  a  replevin  bond  must  depend  materially  on  the  right 
of  the  plaintiff  (defendant  in  replevin)  to  the  property.  If  it  is 
determined  in  the  replevin  suit  that  the  property  belonged  to 
him,  then  in  suit  on  the  bond  he  ought  to  have  a  right  to  recover 
its  value ;  but  if  it  appear  that  he  had  no  right  to  the  property, 
he  has  sustained  no  damage  by  the  refusal  of  the  ol)lig()r  to  de- 
liver it  to  him,  and  in  such  case,  unless  other  actual  damages  are 
shown,  the  plaintiff's  should  be  nominal.'''' 

§  459.  The  same,  in  case  of  joint  owners.  When  a  land- 
lord was  joint  owner  with  liis  tenant,  and  so  defeated  the  action 
of  replevin,  and  had  judgment  for  a  return,  yet  in  a  suit  on  the 
bond  for  a  failure  to  comply  with  the  order,  the  landlord  was 
permitted  to  recover  only  the  value  of  his  interest  in  the  prop- 
erty ;  "*  and  in  this  case  the  defendants  in  the  suit  on  the  bond 
were  permitted,  notwithstanding  the  judgment  in  replevin,  to 
show  the  character  of  the  possession  upon  wliicli  the  plaintill'  re- 
covered."' When  the  defendants  in  the  replevin  had  a  verdict 
and  judgment,  but  it  ajtpeared  that  the  goods  taki'ii  had  never 
been  paid  for  liy  them,  and  that  tliey  could  not  be  liable  for  their 
price,  in  suit  on  the  bond  tliey  could  not  recover  the  value  of  the 
goo<l.s,  but  only  the  value  of  their  intciest.-'* 

§  4G0.     Release  of  bond  by  seizure  on  another  writ  pend- 

•"Ormsbee  v.  Davis,  18  Conn.  HSFj. 

"'Wallace  v.  Clark,  7  Blackf.  299;    BpU  v.  Worthlnston,  3  Cill.  &  J. 
(Md.)   247. 
"•Mason  v.  Sumner,  22  Md.  312. 
»"  lb. 
'••Seldner  v.  Smith,  10  Md.  cm. 


398  THE    LANS'    OF    REPLEVIN. 

ing  suit.  When  tlie  property  is  delivered  to  the  x^laintiff  on  the 
wril,  antl  pending  tlie  suit  it  is  taken  from  him  by  the  order  of 
the  court,  the  securities  may  set  up  that  fact  as  a  discharge."^ 
The  foundation  for  the  rule  seems  to  rest  on  the  theory  that 
property  seized  on  a  writ  of  replevin  is  in  the  custody  of  the 
court.  Though  in  the  i)laintiff's  possession,  it  is  always  within 
the  power  and  control  of  the  court,  and  if  taken  subsequently 
upon  process  from  the  same  court,  the  seizure  by  the  officer  is 
equivalent  to  a  return  of  the  property  to  him,'"*  and  the  securities 
on  the  l)ond  ought  not  to  be  held  responsible  for  property  which 
has  been  taken  from  them  by  order  of  the  court  in  whose  control 
it  was.  To  what  length  this  doctrine  may  be  carried  is  a  question 
as  yet  undecidrd,  so  far  as  the  cases  examined  disclose."". 

§  4G1.  Limitations  to  suit  on  bond.  The  statute  of  limitn- 
tions  to  a  suit  on  bond  does  not  begin  to  run  until  a  judgment 
for  return.  A  simple  delay  to  prosecute  the  security  for  a  shorter 
period  than  the  time  limited  by  law,  will  not  discharge  them.-" 

§  402.  Suit  on  by  sheriff  may  be  in  his  individual  name. 
Suit  by  sheriif  need  not  be  in  the  name  of  his  office;  his  individ- 
ual name,  with  proper  words  of  description,  will  be  sufficient.'"-'' 

="  Caldwell  v.  Gans,  1  Blake,  (Mon.)  578.  Compare  Ackerman  v. 
King,  29  Tex.  291;  Kercheval  v.  Harney,  Meigs,  (Tenn.)  403. 

^''Hunt  V.  Robinson,  11  Cal.  262. 

''"Consult  Burkle  v.  Luce,  1  Comst.  (N.  Y.)  163;  Lockwood  v.  Perry, 
9  Met.  444;  McRea  v.  McLean,  3  Port,  (Ala.)  138;  Evans  v.  King,  7 
Mo.  411;  Hagan  v.  Lucas,  10  Peters,  (U.  S.)  400;  Lovejoy  v.  Bright,  8 
Blackf.  206. 

*"  Daniels  v.  Patterson,  3  Comst.  51. 

"» Caldwell  v.  West,  1  Zab.   (21  N.  J.)   411. 

Note  XXVL  Action  on  the  Bond.  Parties. — The  several  credit- 
ors in  behalf  of  whom  the  sheriff  levied  upon  the  goods,  and 
to  whom  he  has  assigned  the  bond,  may  sustain  an  action 
thereon,  Kaufman  v.  Wessel,  14  Neb.  161,  15  N.  W.  219; 
McCormick  Co.  v.  Fisher,  63  Kans.  199,  65  Pac.  223;  Capitol  Co.  v. 
Learned,  36  Ore.  544,  59  Pac.  454.  In  some  jurisdictions  it  is  held  that 
the  officer  takes  as  trustee  for  the  creditor  whom  he  represents,  and 
that  such  creditor  may  have  an  action  on  the  bond  in  his  own 
name  without  assignment.  Hedderick  v.  Poutet,  6  Mont.  345,  12  Pac. 
765,  citing  Lomme  v.  Sweeney.  1  Mont.  584,  22  Wall.  208,  22  L.  Ed.  727; 
— and  that  parties  severally  interested  as  creditors  may  unite  in 
the  same  action.  Thomas  v.  Irwin,  90  Ind.  557;  that  any  person 
Injured  by  the  breach  of  the  bond  may  sue  thereon  in  the  name 
of  the  sheriff  to  his  own  use,  Hanchett  v.  Buckley,  27  Ills.  Ap.  159. 


THE  BOND.  399- 

But  it  seems  that  the  sheriff  to  whom  the  bond  is  payable  is  the  proper 
plaintiff,  Hicklin  r.  Nebraska  Bank,  8  Neb.  463;  Lomme  v.  Sweeney, 
1  Mont.  584.  And  if  neither  the  judgment  nor  the  bond  have  been 
assigned  and  the  sheriff  has  not  refused  to  enforce  the  bond  or  assign 
the  bond  or  the  judgment  in  the  replevin,  he  is  the  only  proper 
plaintiff,  Greer  v.  Howard,  41  O.  St.  591 — even  although  he  should  have 
gone  out  of  office;  and  even  though  the  bond  be  payable  to  him  and 
his  "successors  in  office;  "  these  words  are  surplusage  and  must 
be  rejected,  Schott  r.  Youree,  142  Ills.  233,  31  N.  E.  591.  And  the 
sheriff  suing  upon  the  bond  represents  all  parties  beneficially  in- 
terested, and  it  is  his  duty  to  distribute  the  proceeds  of  the  litigation 
to  the  proper  parties,  no  matter  who  may  be  named  as  beneficiaries, 
Schott  V.  Youree,  supra.  The  name  of  the  party  or  parties  for  whose 
use  the  officer  sues,  is  immaterial,  Atkins  v.  Moore,  82  Ills.  240.  If 
the  officer  is  made  liable  for  his  proceedings  under  the  writ,  he  may 
call  upon  the  sureties  to  defend  the  suit,  and  if  they  fail  therein 
may  have  his  action  on  the  replevin  bond  and  recover  the  amount 
for  which  he  was  made  accountable.  Smith  v.  Brown,  60  Ills.  Ap. 
771.  The  attaching  creditor  is  properly  joined  with  the  officer  in  a 
suit  upon  the  bond,  though  the  officer  is  the  sole  defendant  in  the 
replevin,  Quinnipiac  Co.  v.  Hackbarth,  74  Conn.  392,  50  Atl.  1023.  The 
assignee  of  a  judgment  may  have  an  action  in  his  own  name  upon  the 
replevin  bond  given  to  the  sheriff,  in  replevying  goods  levied  upon  under 
e.xecution  issued  on  such  judgment,  Kahn  v.  Gavit,  23  Ind.  Ap.  274, 
55  N.  E.  268,  Schleiman  v.  Bowlin,  36  Minn.  199,  30  N.  W.  879.  The 
bond  is  payable  to  several  defendants,  the  goods  are  awarded  to  part 
of  them;  these  may  have  their  action  on  the  bond  without  joining  the 
others,  Pilger  v.  Marder,  55  Neb.  113,  75  N.  W.  559.  Where  the  bond 
is  payable  to  two,  one  of  these  cannot  sustain  an  action,  thereon,  alone, 
upon  allegation  that  the  other  party  has  no  interest,  without  making 
him  party,  Kellar  v.  Carr,  119  Ind.  127,  21  N.  E.  463.  In  like  case  it 
was  held  that  both  defendants  having  recovered  judgment  for  costs, 
might  unite  in  an  action  on  the  bond,  averring  non-return  and  non- 
payment of  the  costs,  although  the  complaint  averred  that  the  property 
was  in  one  of  them,  and  the  judgment  was  for  return  to  him,  Story  v. 
O'Dea,  23  Ind.  326.  The  bond  named  the  defendants  "  Dennis  O'Dea 
et  al ; "  the  writ  named  "O'Dea  and  Dunfe;  "  these  two  joined  in  an 
action  on  the  bond;  a  complaint  alleging  that  judgment  was  given 
In  favor  of  O'Dea  for  return,  and  In  favor  of  both  plaintiffs  for  their 
costs,  was  held  sufficient.  Story  v.  O'Dea,  supra.  A  stranger  to  the 
action  In  whif-h  the  bond  is  given  cannot  maintain  an  action  thereon, 
even  though  by  the  replevying  of  the  goods,  their  sale,  and  the  subse- 
quent adJUBtmont  of  the  replevin  by  the  parties  to  th/.it  action  he  Is 
prevented  from  having  satisfaction  of  a  debt  against  the  real  owner 
of  the  goods,  Pipher  v.  Johnson,  108  Ind.  401,  9  N.  E.  376. 

In  an  action  In  one  slate  uiion  the  replevin  bond  given  In  another, 
the  breach  assigned  being  non-payment  of  the  Judgment  for  the  value, 
given  In  the  courts  of  the  latter  state.  It  will  be  pnHunicd  in  the  ahKcncc 


400  THE    LAW    OF    REPLEVIN. 

of  evidence  that  the  laws  of  the  latter  state  are  identical  with  those  of 
the  former,  Osborn  v.  Blackburn,  78  Wis.  209,  47  N.  W.  175.  10  L.  R.  A. 
367. 

Pleadings  of  the  Plaintiff. — Under  the  code  provision  that  the  ac- 
tion shall  be  in  the  name  of  the  real  party  in  interest,  the  creditor 
upon  whose  writ  the  sheriff  levied,  suing  upon  the  bond  need  not 
aver  an  assignment  of  it,  Parrott  r.  Scott.  G  Mont.  340,  12  Pac.  763; 
hut  the  complaint  must  aver  nonpayment  of  the  judgment  in  favor 
of  the  creditor,  judgment  in  favor  of  the  officer  in  the  replevin  suit, 
and  non-return  of  the  goods,  or  some  other  breach  of  the  bond,  Id.  Not 
necessary  to  aver  that  the  plaintiff  in  an  attachment  writ,  under 
which  the  goods  were  levied  upon  by  the  officer  from  whom  they 
were  replevied,  recovered  judgment  in  that  suit,  or  that  the  demand 
of  the  plaintiff  in  that  suit  remains  unsatisfied,  Eickoff  v.  Eikenbary, 
52  Neb.  332,  72  N.  W.  308.  It  is  sufficient  to  describe  the  goods 
replevied  as  "  a  certain  stock  of  goods,  liquors,  cigars,  the  property  of, 
etc.,"  Keenan  v.  Washington  Co.,  8  Idaho,  383,  69  Pac.  112.  Averment 
that  the  replevin  was  instituted  in  Lawrence  Circuit  Court,  a  bond 
given  in  that  suit,  that  the  venue  was  changed  to  Greene  Circuit  Court, 
and  that  such  proceedings  were  then  and  there  had  that  it  was  adjudged 
that  "  plaintiffs  recover,  etc.," — held  to  import  that  the  judgment 
mentioned  was  recovered  in  the  replevin  suit,  Blackburn  v.  Crowder, 
108  Ind.  238,  9  N.  E.  108.  It  is  sufficient  to  set  up  in  the  complaint 
so  much  of  the  bond  as  is  necessary  to  show  a  right  of  action, 
Dorrington  v.  Meyer,  8  Neb.  211.  The  plaintiff  must  show  the  judg- 
ment given  in  the  action  of  replevin,  Parrott  v.  Scott,  6  Mont.  340, 
12  Pac.  763;  McGary  v.  Barr,  Pa.  St.  19  Atl.  45.  If  the  judgment 
in  the  replevin  is  set  forth  with  substantial  accuracy  this  is  sufficient, 
the  phraseology  of  the  record  or  what  led  up  to  the  judgment  is 
unimportant,  Stevison  v.  Ernest,  80  Ills.  513. 

Pleadings  of  Defendant. — The  surety  may  plead  in  an  action  on  the 
bond  that  the  judgment  in  the  replevin  was  obtained  by  fraud 
and  collusion;  plea  that  defendant  in  replevin  procured  plaintiff 
to  leave  the  state  by  a  promise  that  the  suit  should  not  be  prose- 
cuted and  afterwards  took  judgment  in  violation  of  his  agreement, — 
held,  bad.  for  failing  to  aver  that  the  plaintiff  nras  induced  to  leave 
the  state  for  any  purpose  connected  with  that  suit,  or  that  he  left  the 
state  by  reason  of  the  agreement,  or  that  the  defendant  in  replevin 
took  advantage  of  his  absence  to  procure  the  judgment  without  his 
knowledge,  or  that  plaintiff  was  absent  or  was  ignorant  of  the  judg- 
ment when  it  was  taken,  Wright  v.  Card,  16  R.  L  719,  19  Atl.  709. 
Plea,  to  the  whole  of  the  action,  of  matter  which  is  an  answer  to 
only  part,  is  bad,  Fis'se  v.  Katzantine.  93  Ind.  490;  so  matters  which 
go  in  mitigation  of  damages  merely,  Wright  v.  Card,  supra;  Morehead  v. 
Yeasel,  10  Ills.  Ap.  263.  Under  plea  of  the  general  issue  to  a  declaration 
upon  a  replevin  bond  the  defendant  cannot  put  in  evidence  the  record 
of  the  sale  of  the  chattels,  under  foreclosure  of  a  chattel  mortgage 
thereof,  Stafford  v.  Baker,  Mich.  104  N.  W.  321.     Plea  of  the  general 


THE  BOND.  401 

issue  to  a  declaration  upon  a  replevin  bond  admits  the  execution  and 
delivery  of  the  bond,  and  that  the  property  was  taken  by  virtue  of 
that  bond.  Stafford  v.  Baker,  Mich.  104  N.  W.  321.  Sureties  in  the  bond 
plead  property  in  the  goods,  not  in  the  plaintiff  in  replevin,  but  "  in 
these  defendants;  "  the  defense  fails,  Chapin  v  Matson,  37  Ills.  Ap. 
257.  Nul  tiel  record  of  the  writ  of  replevin  is  not  a  good  plea,  Tedrick  v. 
Wells,  59  Ills.  Ap.  657.  Defendant  may  plead  that  by  an  agreement  of 
the  parties  a  different  bond  was  substituted  for  that  sued  upon, 
Busch  r.  Fisher,  73  Mich.  370,  41  N.  W.  325.  Cross-suits  were  pending 
involving  title  to  a  quantity  of  logs;  Busch  was  plaintiff  in  the  first 
suit;  and  Fisher  and  others  defendant;  in  the  second  suit  Fisher 
and  others  were  plaintiffs,  and  Busch  and  others  defendants;  an  injunc- 
tion was  awarded  to  restrain  plaintiffs  in  the  second  suit  from  removing 
the  logs;  a  bond  was  thereupon  given  by  Fisher  and  others  reciting 
the  litigation  and  agreeing  that  this  bond  "  should  take  the  place 
of  the  lumber,"  and  conditioned  that  if  judgment  was  recovered 
by  Busch  in  the  last  action  the  obligees  should  pay  to  Busch  the 
value  of  the  lumber  "  less  any  equitable  defences "  of  Fisher  and 
others;  held,  that  this  bond  superseded  the  replevin  bond,  Id.  If  an 
officer  be  defendant  in  the  replevin  the  sureties  in  the  replevin  bond 
may  show  the  invalidity  of  the  officer's  levy,  Quackenbush  v.  Henry,  42 
Mich.  75,  3  N.  W.  262.  Where  by  agreement  a  different  judgment 
is  entered  than  that  required  by  law  the  sureties  are  not  bound, 
Lee  V.  Hastings,  13  Neb.  508,  14  N.  W.  476;  but  see  Council  v.  Averett, 
90  N.  C.  168.  The  surety  makes  plaintiff  his  agent  to  compromise  the 
litigation.  Nimocks  v.  Pope,  117  N.  C.  316;  23  S.  E.  269.  The  surety 
is  to  be  regarded  as  a  party  to  the  litigation  in  the  replevin  and  to 
the  proceedings  therein.  Capital  Co.  v.  Learned,  36  Ore.  544,  59  Pac. 
454.  The  substitution  of  the  creditor  under  whose  process  the  goods 
were  seized,  for  the  officer  who  is  named  as  defendant,  does  not 
affect  the  liability  of  the  sureties  in  the  replevin  bond  nor  work 
their  discharge,  Elder  v.  Fielder,  9  Baxt.  272.  Nor  does  any  authorized 
amendment  of  the  writ  as  by  striking  out  the  words  "  executors  of  tl'.e 
last  will  of,"  ana  inserting  "heirs  at  law  of"  and  adding  the  names 
of  other  heirs  as  plaintiffs,  Jamieson  v.  Capron,  95  Pa.  St.  15.  The 
surety  contracts  with  the  implied  understanding  that  the  process  shall 
be  conducted  according  to  law,  and  the  statute  allowing  amendments 
is  as  much  a  part  of  his  contract  as  if  embodied  therein,  /(/.  But  in 
replevin  for  a  quantity  of  logs  an  amendment  changing  the  description 
of  the  lands  upon  which  the  logs  were  alleged  to  have  been  wrongfully 
cut, — held  to  be  such  a  material  variation  of  the  Issues  as  discharged 
the  sureties— Bolton  v.  NItz,  88  Mich.  354,  50  N.  W.  291.  The  sureties 
may  show  that  judgment  was  entered  by  an  agreement  for  an  ex- 
cpHslve  amount,  having  no  relation  to  the  controversy,  or  that  the 
defendant,  by  a  second  replevin,  obtained  the  goods  In  the  sanip 
condition  as  whon  taken  from  lilm,  Ulnker  v.  Lee.  29  Nob.  783,  46 
N.  W.  211,  citing  Demers  t'.  ClemmenK.  2  Mont.  385.  Defendant  cannot 
plead  In  the  same  plea  matters  which  excuse  performance,  and  per- 
26 


402  THE    LAW    OF    REPLEVIN. 

formavit  omnia,  Wright  v.  Card,  supra.  If  the  plea  avers  a  tender 
of  a  part  only  of  the  goods  with  a  sum  of  money  "  to  cover  all 
damages  on  anount  of  any  deficiency,"  It  must  show  also  that  the 
amount  was  sufficient  to  cover  all  such  damages,  Bradley  v.  Reynolds,  61 
Conn.  272,  23  Atl.  928. 

Defenses    to    the  Action. — It   is    no    defense    that    the    defendant    in 
replevin  failed  to  present  a  claim  against  the  estate  of  the  principal 
in  the  bond  within  the  period  of  the  statute  of  non-claim,  Eickhoff  v. 
Eikenbary,  52  Neb.  332;    72  N.   W.  308;— nor  that  the  plaintiff  failed 
to  give  an  indemnifying  bond  to  the  sheriff  as  required  by  the  statute, 
Parrott  v.   Scott,   6   Mont.  340,   12   Pac.   7G3; — nor   that  no  alternative 
judgment  for  the  value  of  the  property  was  given,  Sweeney  v.  Lomme, 
22   Wall.    (89   U.    S.)    208,  22  L.   Ed.   727;    Capital   Co.  v.   Learned,  36 
Ore.  544.  59  Pac.  454;   Eisenhart  v.  McGarry,  15  Colo.  Ap.  1,  61  Pac. 
56; — nor  is  the  failure  to  issue  execution  upon  the  judgment  of  retorno. 
Id.  Douglas  V.  Douglas.  21  Wall.    (88  U.  S.)    98,  22  L.  Ed.  479;— nor, 
to   a   single   surety,   that   two   sureties   were   required    by   the   statute, 
Capital  Co.  v.  Learned,  supra : — nor  that  the  distress  warrant,  where 
the    replevin    was    for    distress,    was    quashed,    Corley    v.    Rountree,. 
Tex.  Civ.  Ap.  37  S.  W.  475; — nor  that  irregularities  occurred   in  the 
action    of    replevin.    Cox    v.    Sargent,    10    Colo.    Ap.    1,    50    Pac.    201; 
Christiansen  v.  Mendham,  45  Ap.  Div.  554.  61  N.  Y.  Sup.  326;  McCarthy 
V.    Strait,    7    Colo.    Ap.    59.    42    Pac.    189;    Central    National    Bank    v. 
Brecheisen,   65   Kans.   807,    70  Pac.   895;    McFadden   v.   Ross.   108    Ind. 
512,  8  N.  E.  161;    Jones  v.  Findlay.  84  Ga.  52,  10  S.  E.  541;   Glenn  v. 
Porter,  68  Ark.  320,  57  S.  W.  1109; — provided  the  affidavit  was  in  com- 
pliance with  the  statute,  Carlon  v.  Dixon,  12  Ore.  144,  6  Pac.  500;  — 
nor  that  no  search  was  made  by  the  officer  upon  the  writ  of  retorno. 
Bradley  v.  Reynolds,  61  Conn.  272.  23  Atl.  928;— nor  that  the  defendant 
in  replevin  has  acquired  a  lien  upon  the  lands  sufficient  to  satisfy  his 
judgment,  Id. ; — nor  that  the  goods  were  tendered  after  a  reasonable 
time,  Id.; — even  although  the  plea  avers  that  the  sureties  were  unable 
to  find   them   sooner,   Bradley  v.   Reynolds,  supra: — nor   that  no  writ 
of  retorno  was  taken  out  nor  demand  made  for  the  goods,  Wright  v. 
Quirk,  105  Mass.  44,  Lomme  v.  Sweeney.  1  Mont.  584;  Turnor  v.  Turner, 
2  Bro.  &  B.,  107; — nor  that  no  affidavit  was  filed  in  the  replevin  suit. 
Stimer  v.  Allen,  88  Mich.  140,  50  N.  W.  107; — nor  that  there  was  no 
judgment  either  for  return  or  for  damages,  the  complaint  showing  that 
the  plaintiff  in  replevin  was  non-suited,  Wright  v.  Card,  16  R.  I.  719, 
19  Atl.  709; — nor  that  the  goods  were  surrendered  by  the  plaintiff  in  the 
replevin,  after  the  period  for  the  satisfaction  of  the  judgment  according 
to  a  stipulation,  had  expired,  Nimocks  v.  Pope,  117  N.  C.  316,  23  S.  E. 
269; — nor  that  a  part  only  of  the  goods  were  returned,  or  that  all  the 
goods  were  returned  in  damaged  condition,  Yelton  v.  Slinkard,  85  Ind. 
191; — nor  that  the  original  judgment  was  for  costs  merely  and  that 
judgment  of  retorno  or  for  the  value  was  entered  nunc  pro  tunc  years, 
afterwards,  Clark  v.  LeHess.  9  Colo.  Ap.  453,  48  Pac.  818;— nor  that  the 
venue  in  the  action  of  replevin  was  changed  to  another  county.  Schott 


THE  BOND.  403 

1'.  Youree,  142  Ills.  233,  31  N.  E.  591;— nor  that  the  things  replevied 
were  not  personal  goods.  Id.  Gilbert  v.  Buffalo  Bill  Co.,  70  Ills.  Ap. 
326; — or  were  destroyed  after  they  were  replevied,  Id.,  even  though 
without  fault  of  the  plaintiff  in  replevin,  Scott  v.  Rogers,  56  Ills.  Ap. 
571;  Suppiger  v.  Gruaz.  137  Ills.  216,  27  N.  E.  22;  Three  States  Co.  v. 
Blanks,  C.  C.  A.,  133  Fed.  479,  rejecting  the  authority  of  Bobo  v.  Patton, 
6  Heisk.  192,  19  Am.  Rep.  593. 

The  question  is  one  of  general  law,  the  decision  of  the  state  court 
does  not  control  the  federal  court.  Id.  Plaintiff  in  possession  of  lumber 
taken  unde'-  the  writ,  loaded  upon  a  barge,  is  bound  to  protect  it;  and 
if  it  is  sunk  by  any  casualty,  to  raise  it;  and  if  after  such  salvage  he 
conveys  it  to  mother  jurisdiction  and  causes  it  to  be  libelled  and  sold 
for  the  cost  of  the  salvage  the  judgment  of  condemnation,  and  the 
proceedings  under  it,  afford  him  no  protection.    Id. 

Nor  can  it  be  asserted  in  defence  that  the  goods  were  placed  beyond 
the  control  of  plaintiff  in  the  replevin  without  his  fault,  Harrison  v. 
Wilkin,  78  N.  Y.  390; — nor  that  the  claim  of  the  creditor  for  whose  use 
the  suit  is  brought  has  been  proved  against  the  assignees  in  insolvency 
of  the  plaintiff  in  replevin,  Schott  ik  Youree,  supra; — nor  that  the  claim 
of  the  officer  under  the  bond  was  not  presented  against  such  assignee, 
Id.; — nor  that  the  name  of  the  principal  in  the  bond  was  subscribed 
by  an  attorney  without  authority,  Arthur  v.  Sherman,  11  Wash.  254,  39 
Pac.  670; — nor  that  the  goods  were  exempt  by  law  to  a  debtor  who  was 
a  stranger  to  the  replevin,  Capen  v.  Bartlett,  153  Mass.  346,  26  N.  E. 
873; — nor,  where  the  replevin  was  brought  for  certain  sash,  removed 
from  the  building  in  wnich  they  had  been  placed,  that  the  defendant  in 
that  action  afterwards  attempted  to  establish  a  mechanic's  lien  upon  the 
building,  McMeekin  v.  Worcester,  99  la.  243,  G8  N.  W.  680;— nor,  where 
the  plaintiff  in  replevin  had  obtained  the  goods  by  his  writ  and  con- 
verted them,  that  the  defendant,  an  officer  who  claimed  them  under  a 
levy,  had  failed  to  take  a  judgment  for  the  return,  Keenan  v.  Washing- 
ton Co.,  8  Idaho,  383,  69  Pac.  112;— nor  that  the  writ  under  which  the 
defendant  in  the  replevin  had  levied  upon  the  goods,  was  void,  Stevi- 
son  V.  Earnest,  80  Ills.  513;  Waddell  v.  Bradway,  84  Ind.  537; — nor  that 
the  bond  recites  three  plaintiffs  in  the  action  when  in  fact  there  was 
only  one,  and  he  alone  executed  it,  there  being  nothing  to  show  that  the 
sureties  executed  it  upon  condition  that  the  others  named  should  unite; 
— nor  that  the  bond  was  delivered  in  violation  of  an  agreement  between 
the  principal  and  any  other  party  to  the  bond,  unknown  to  the  party  for 
whose  benefit  It  was  executed,  Richardson  v.  Peoples  National  Bank,  57 
O.  St.  299,  48  N.  E.  1100;— nor  error  in  the  judgment  in  replevin.  Id.;— 
nor  that  the- principal  In  the  bond  was  a  married  woman  and  so  dis- 
qualified to  contract,  Coverdale  ?'.  Alexander,  82  httl.  503; — nor  that 
one  of  the  prlncipalH  In  the  bond  was  both  an  infant  and  a  marrifd 
woman;  plaintiff  may  take  jiidgnn-nt  against  as  many  of  the  obligors 
an  are  legally  liable,  Alexander  v.  Lydlck.  80  Mo.  341;— nor  that  the 
action  of  replevin  was  dismissed  because  the  value  of  the  goods  ex- 
ceeded the  Jurisdiction  of  the  Ju8tl<c  before  whom  the  action  wiui  insti- 


404  THE    LAW    OF    KKPLEVIN. 

tuted,  Id.: — nor  that  the  value  of  the  goods  was  not  ascertained  in  the 
replevin  suit,  even  though  the  statute  require  it,  Yelton  v.  Slinkard,  85 
Ind.  191; — nor  can  the  sureties  set  up  a  mortgage  upon  the  goods  held 
by  one  of  them,  though  the  averment  is  that  the  plaintiff  obtained  the 
goods  subject  to  the  mortgage.  Woods  v.  Kessler.  93  Ind.  356; — nor  is  a 
mortgage  held  by  plaintiff  in  the  rei)levin  suit  a  defense,  Smith  v. 
Mosby.  98  Ind.  446; — nor  an  injunction  which  .loes  not  restrain  the 
plaintiff  in  replevin  from  prosecuting  his  action,  nor  from  returning  the 
goods  pursuant  to  the  judgment  against  him.  Holler  v.  Colson,  23  Ills. 
Ap.  324; — nor  that  the  plaintiff  in  the  action  on  the  bond  has  no  bene- 
ficial interest.  Smith  v.  Hertz,  37  Ills.  Ap.  36; — nor  that  there  was  no 
judgment  of  retorno.  The  plaintiff  may  in  the  action  on  the  bond  re- 
cover his  costs  in  the  replevin  suit,  Myers  v.  Dixon,  106  Ills.  Ap.  322;  — 
and  as  it  seems,  he  may  recover  the  value  of  the  goods,  Gardiner  v. 
McDermott,  12  R.  I.  206;  Pierce  v.  King,  14  R.  T.  611.  Where  there  is 
judgment,  both  for  the  return  of  the  goods  and  for  the  payment  of 
damages  and  costs,  it  is  no  defence  to  an  action  on  the  bond,  that  only 
one  alternative  has  been  performed,  Douglas  v.  Galwey,  76  Conn.  683, 
58  Atl.  2;  Humphrey  v.  Taggart,  38  Ills.  228.  And  it  is  no  defense  that 
the  bond  was  not  entered  into  before  the  same  magistrate  who  signed 
the  writ,  Douglass  v.  Unmack,  77  Conn.  181,  58  Atl.  710;— nor  that  there 
were  formal  defects  in  the  judgment  in  replevin,  Christiansen  v.  Mend- 
ham,  45  Ap.  Div.  554,  61  N.  Y.  Sup.  326; — nor  that  the  bond  was  given 
voluntarily  after  the  institution  of  the  replevin,  and  without  any  order 
of  the  court,  Treman  v.  Morris,  9  Ills.  Ap.  237; — nor  are  defects  in  the 
bond  which  the  defendant  in  replevin  has  waived,  a  defense  to  an  action 
thereon.  Tuck  v.  Moses,  54  Me.  115; — nor  is  the  giving  of  time  by  de- 
fendant to  plaintiff  in  the  replevin,  Moore  v.  Bowmaker,  6  Taunt.  379; 
— nor  an  order  made  in  the  action  of  replevin,  which  was  beyond  the 
power  of  the  court,  Alderman  v.  Roesel,  52  S.  C.  162,  29' S.  E.  385;— nor 
that  the  bond  was  prepared  for  execution  by  other  sureties  whose  names 
were  not  affixed,  McLeod  Co.  v.  Craig,  Tex.  Civ.  Ap.  43  S.  W.  934;— nor 
is  an  adjudication  in  another  suit  that  the  replevin  bond  was  not  a  com- 
pliance with  the  statute,  no  breach  of  the  bond  having  then  occurred, 
Colorado  Bank  v.  Lester,  73  Tex.  542; — nor  is  the  failure  of  the  sure- 
ties to  acknowledge  the  bond  or  justify,  as  required  by  statute,  Wheeler 
V.  Paterson,  64  Minn.  231,  66  N.  W.  964; — nor  that  the  court  by  whose 
process  the  plaintiff  in  replevin  obtained  possession  of  the  goods  was 
without  jurisdiction,  McDermott  v.  Tsbell,  4  Calif.  113;  but  a  bond 
conditioned  to  perform  the  judgment  of  a  court  having  no  jurisdiction, 
is  void,  and  no  liability  arises  upon  it  even  though  the  principal  by 
means  of  the  bond  caused  the  litigation  to  be  removed  into  such  court, 
Mittnacht  v.  Kellerman,  103  N.  Y.  461,  12  N.  E.  28.  In  some  courts  it 
is  held  that  if  the  action  of  replevin  be  dismissed  for  want  of  jurisdic- 
tion a  judgment  of  retorno  is  void,  and  disobedience  of  it  is  not  a  breach 
of  the  bond.  Elder  v.  Greene,  34  S.  C.  154,  13  S.  E.  323.  It  is  no  plea 
that  the  plaintiff  in  replevin  was  in  fact  the  owner  of  the  goods.  Id.; — 
nor  that  the  principal  obligor  in  the  bond  had  surrendered  the  goods 


THE  BOND.  405 

to  a  stranger  in  pursuance  of  an  order  made  by  the  court  in  a  cause  to 
which  the  obligee  in  the  bond  was  not  a  party.  Levy  v.  Lee,  13  Tex. 
Civ.  Ap.  510,  36  S.  W.  309;— nor  that  the  sheriff  did  not  accept  the  bond, 
Jones  r.  Findley,  84  Ga.  52,  10  S.  E.  541; — or  did  not  approve  it,  Hart- 
lep  V.  Cole,  120  Ind.  247.  22  N.  E.  130;  Parker  v.  Young,  188  Mass.  600, 
75  N.  E.  98; — nor  that  the  goods  were  not  delivered  to  the  principal  in 
the  bond,  where  the  surety  knew  that  they  had  already  been  delivered 
to  another,  upon  a  bond  upon  which  also  he  was  surety,  Id.; — nor  that 
the  verdict  in  the  replevin  was  given  by  consent,  where  it  accords  with 
the  substantial  truth  of  the  matter,  Jones  v.  Fin  Jley  supra : — nor  that 
there  were  defects  in  the  writ  in  the  replevin  suit,  Goodell  v.  Bates,  14 
R.  I.  65; — nor  can  the  surety  object  that  the  defendant  omitted  to  give 
notice  to  him  before  proceeding  to  judgment  on  the  bond;  by  execution 
of  the  bond  he  becomes  party  to  the  action  and  is  bound  by  whatever  is 
lawfully  done  therein,  Glenn  v.  Porter,  68  Ark.  320,  57  S.  W.  1109, 
Richardson  v.  Peoples  Bank,  57  O.  St.  299,  48  N.  E.  1100;— nor  is  it  a  de- 
fense that  the  defendant  in  the  replevin  has  taken  execution  upon  the 
judgment  given  therein  in  his  favor  and  is  prosecuting  said  execution, 
Hartlep  v.  Cole,  supra: — nor  that  there  was  no  judgment  for  return 
and  no  assessment  of  damages  in  the  replevin,  where  this  was  prevented 
by  the  plaintiff  in  that  action  procuring  a  change  of  venue  illegally, 
Morrison  v.  Yancey,  23  Mo.  Ap.  670; — nor  that  the  name  of  the  surety  is 
not  inserted  in  the  body  of  the  bond,  Affeld  v.  The  People,  12  Ills.  Ap. 
502; — nor  that  there  is  a  misnomer  of  one  of  the  parties.  Id.  Hibbard 
V.  McKindley,  28  Ills.  240; — nor  that  the  order  for  the  delivery  was 
signed  by  the  plaintiff  in  the  replevin  instead  of  the  justice  before  whom 
the  proceedings  were  had,  Carlon  v.  Dixon,  12  Ore.  144,  6  Pac.  500; — nor 
Is  the  bankruptcy  of  the  principal  in  the  bond  a  defense  to  the  surety. 
Robinson  v.  Soule,  56  Miss.  549; — nor  is  the  fact  that  the  bond  is  not  in 
the  penalty  required  by  the  statute,  Trueblood  v.  Knox,  73  Ind.  310, 
Carver  v.  Carver,  77  Ind.  498; — nor  that  a  third  person  intervened  in 
the  replevin  suit,  claiming  the  goods  as  against  both  the  original  parties, 
Katz  V.  American  Co.,  86  Minn.  168,  90  N.  W.  376;— nor  that  the  de- 
fendant in  replevin  forcibly  recaptured  the  goods  from  the  plaintiff, 
where  in  the  action  of  replevin  judgment  was  given  for  return.  Story  v. 
O'Dea,  23  Ind.  326,  though  11  seems  it  may  be  shown  in  mitigation  of 
damages,  Id.  And  it  is  no  defense  to  an  action  on  the  bond 
that  the  writ  of  replevin  was  not  executed  by  the  sheriff  to  whom  the 
bond  was  made  payable,  but  by  his  successor  in  office,  Petrie  v.  Fisher, 
43  Ills.  442; — nor  can  the  defendants  in  an  action  on  the  bond  contra- 
dict the  recitations  therctof.  Central  Hank  v.  Breckheisen,  65  Kaii.s.  ,S(i7, 
70  Pac.  895.  The  sureties  are  liable,  although  the  suit  is  dismissed  for 
want  of  prosecution,  or  abates  by  the  death  of  the  plaintiff  and  is  not 
revived,  MrCormi(  k  Co.  v.  FlHher.  63  Kans.  199,  65  Pac.  223; — or  abates 
for  any  other  cause,  Rogers  v.  United  States  Co.,  84  N.  Y.  Sup.  203; 
Verra  v.  Constantino,  84  N.  Y.  Sup.  222. 

It  iB  not  necesHary  to  sustain  an  action  on  the  bond  that  there  should 
have  been  any  adjudication  of  the  rights  of  the  party  In  the  replevin. 
Manning  v.  Manning,  26  Kan.i.  9«.    Tin-  nbllgccK  arc  rutoiipc  d  to  say  that 


lOG  THE    LAW    OF    REPLEVIN. 

one  of  the  defendants  in   the  replevin  had  no  interest  in   the  goods, 
Ringgenbprg  v.  Hartnmn,  124  Ind.  186.  24  N.  E.  987. 

But  it  may  be  shown  that  the  plaintiff  delivered  the  goods  to  the 
administrator  of  a  decedent  for  whom  the  defendant  was  agent  and 
to  whom  the  defendant  would  have  been  under  duty  to  deliver  them, 
Simmons  v.  Robinson,  101  Mich.  240,  59  N.  W.  623;  or  that  the  bond 
was  superseded  by  another  bond,  Buach  v.  Fisher,  73  Mich.  370,  41  N. 
W.  325; — or  that  a  different  judgment  was  given  in  the  replevin  than 
that  required  by  law,  Lee  v.  Hastings,  13  Neb.  508,  14  N.  W.  47G;  New 
England  Co.  v.  Bryant,  64  Minn.  256,  66  N.  W.  974;  distinguishing 
Robertson  v.  Davidson.  14  Minn.  554;  Clary  v.  Rolland,  24  Calif.  147. 
The  sureties  contract  in  contemplation  of  a  judgment  which  may  be 
satisfied  by  a  return  of  the  goods,  and  if  the  judgment  is  absolute  for 
the  value  without  any  alternative  they  are  not  bound.  Field  v.  Lum- 
bard,  53  Neb.  397,  73  N.  W.  703.  If  there  is  no  judgment  for  return  the 
surety  cannot  be  made  liable  for  a  failure  to  return,  Thomas  v.  Irwin, 
90  Ind.  557,  citing  Clary  v.  Rolland,  21  Calif.  147,  Mitchum  v.  Stanton, 
49  Calif.  303,  Ladd  v.  Prentice,  14  Conn.  109;  Clark  v.  Norton,  6  Minn. 
412;  Gallarati  v.  Orser,  27  N.  Y.  324;  Cooper  v.  Brown,  7  Dana,  333; 
Ashley  v.  Peterson,  25  "Wis.  621;  -ceno  v.  Wcodyatt.  81  Ills.  Ap.  553. 
And  where  there  is  no  judgment  for  return  the  sureties  are  not  re- 
sponsible for  the  value  of  the  goods.  Foster  v.  Bringham,  99  Ind.  505; 
Myers  v.  Dixon,  106  Ills.  Ap.  322;  but  only  for  costs,  Hovey  v.  Coy,  17 
Me.  266;  Colorado  Springs  Co.  v.  Hopkins,  5  Colo.  206; — it  is  a  defense 
that  the  goods  were  actually  taken  by  the  officer  on  the  writ  of  retorno, 
although  in  damaged  cond'tion,  Douglas  v.  Douglas,  21  Wall.  (88  U.  S.) 
98,  22  L.  Ed.  479.  The  sureties  are  not  liable  for  the  value  of  the 
goods  unless  there  was  a  judgment  of  return.  Citizens  Bank  v.  Morse, 
60  Kans.  526.  57  Pac.  115,  citing  Thomas  v.  Irwin,  90  Ind.  557,  dis- 
tinguishing Marix  v.  Franke,  9  Kans.  132,  and  rejecting  what  is  said 
in  Cobbey  Rep.,  Sec.  1159.  But  if  return  was  awarded  it  is  not  ma- 
terial that  there  was  no  trial  in  the  action  of  replevin,  plaintiff  having 
dismissed  his  action,  McKey  v.  Lauflin,  48  Kans.  581,  30  Pac.  16;  — 
and  v/here  the  judgment  in  replevin  merely  determined  the  right  of 
jjossession,  it  may  be  shown  that  the  property  replevied  was  in  fact 
the  property  of  the  plaintiff  in  that  suit,  and  that  under  a  change  of 
circumstances  he  is  entitled  to  retain  it.  Pearl  v.  Garlock,  61  Mich.  419, 
28  N.  W.  155.  Sureties  are  not  bound  by  judgment  of  return  where 
the  record  shows  that  the  goods  were  never  taken  on  the  writ  of  re- 
plevin, Gallup  V.  "Wortman,  11  Colo,  Ap.  308,  53  Pac.  247; — nor  where 
the  plaintiff  in  replevin  obtained  the  goods,  not  under  the  writ  but 
under  a  final  judgment  in  his  favor  in  the  action  of  replevin,  Rinear  v. 
Skinner,  20  Wash.  541,  56  Pac.  24.  And  where  the  statute  provides 
that  in  an  action  on  the  bond  the  defendants  may  plead  that  the  merits 
of  the  case  were  not  determined  in  the  replevin,  and  that  the  goods 
were  the  property  of  the  plaintiff  in  that  suit,  this  defense  avails, 
although  the  failure  to  investigate  the  merits  was  due  to  a  defect  of 
jurisdiction;   and  the  goods  need  not  be  returned  to  entitle  the  parties 


i 


THE  BOND.  407 

to  interpose  this  plea.  O'Donnell  r.  Colby,  153  Ills.  324,  38  N.  E.  1065. 
The  statute  in  question  does  not  allow  a  plea  of  title  in  a  stranger. 
Holler  V.  Colson,  23  Ills.  Ap.  324.  If  the  plaintiff's  suit  is  discon- 
tinued he  loses  all  right  to  contest  the  claim  of  the  defendant  to  the 
goods,  except  that  saved  to  him  by  the  statute,  Stevison  v.  Earnest,  80 
Ills.  513.  The  defendants  in  the  action  on  the  bond  cannot  avail 
themselves  of  the  statute,  in  mere  mitigation  of  damages,  without  plea, 
Magerstadt  v.  Harder,  95  Ills.  Ap.  270,  S.  C.  199  Ills.  271.  65  X.  E.  225. 
The  action  on  the  bond,  it  is  said,  is  a  mere  continuation  of  the  re- 
plevin, Gilbert  v.  Sprague,  196  Ills.  444,  63  N.  E.  993. 

It  is  a  good  defense,  so  far  as  the  value  of  the  goods  is  concerned, 
that  the  goods  were  returned  within  a  reasonable  time  and  in  the 
s^me  condition  as  when  taken,  June  v.  Payne,  107  Ind.  308,  7  N.  E.  370, 
8  N.  E.  556.  The  sureties  may  show,  notwithstanding  the  return  of 
the  sheriff,  that  the  instrument  which  they  executed  was  not  a  re- 
plevin bond,  but  a  forthcoming  bond,  Philman  v.  Marshal,  103  Ga.  82,  29 
S.  E.  598; — or  that  the  defendant  in  the  replevin  suit  has  been  paid  for 
the  property  by  the  party  from  whom  he  purchased  it,  who  was  sub- 
stituted as  defendant  in  the  replevin,  Vinton  v.  ^Mansfield,  48  Conn. 
474; — or  that  the  action  of  replevin  was  discontinued  by  an  agreement 
between  plaintiff  and  defendant  adjusting  all  differences,  Gerard  v. 
Dill,  96  Ind.  101; — or  that  the  action  of  replevin  is  still  pending  upon 
an  appeal  from  the  judgment  of  the  court  of  first  instance,  Boughton 
V.  Omaha  Co.  73  Mo.  Ap.  597,  Clemmons  v.  Gordon,  37  Misc.  835,  76  N. 
Y.  Supp.  999; — or  that  the  bond  was  never  accepted,  nor  any  replevy  of 
the  goods  made,  McTeer  r.  Briscoe.  Tenn.,  61  S.  W.  564; — or  that  the 
record  in  the  action  of  the  replevin  shows  that  the  goods  exceeded  in 
value  the  jurisdiction  of  the  justice  by  whom  the  bond  was  taken,  Rob- 
inson V.  Bonjour,  16  Colo.  Ap.  458,  66  Pac.  451;  Rosen  v.  Fischel,  41. 
Conn.  371; — or  that  the  plaintiff  in  replevin  never  obtained  the  goods  on 
the  writ,  Reno  v.  Woodyatt,  81  Ills.  Ap.  553;  Knott  v.  Sherman,  7  S.  D. 
522,  64  N.  W.  542.  though  the  allegation  that  the  replevin  was  discon- 
tinued before  the  delivery  of  the  chattels  to  the  plaintiff,  and  that  plain- 
tiff still  retains  possession  of  the  chattels,  whether  under  the  writ  or 
otherwise  not  appearing,  will  not  suffice,  Pettit  v.  Allen.  64  App.  Div.  579, 
72  N.  Y.  Sup.  287;  r  that  the  plaintiff  accepted  other  goods  than  those 
replevied  in  satisfaction  of  the  judgment  returned; — if  accepted,  in 
part  satisfaction  only,  the  sureties  are  released  pro  tanto.  Union  Stove 
Works  V.  Breldenstein,  50  Kans.  53,  31  Pac.  703; — or  if  a  substantial 
portion  of  the  goods  are  tendered  In  the  same  condition  in  which 
they  were  taken,  the  sureties  are  discharged  pro  tanto,  Harts  r. 
Wendell,  26  Ills.  Ap.  274.  But  the  machinery  of  a  factory  Is  (o  bo  con- 
sidered as  a  whole  and  an  offr-r  to  return  a  portion  of  it  is  properly 
rejectfd  in  the  ar-llon  on  the  bond.  Stevens  v.  Tuite.  104  Mass.  328. 

And  the  sureties  may  show  that  the  goods,  after  being  replevied,  were 
taken  under  process  of  law,  and  held  or  sold,  Caldwell  v.  Cans,  1  Mont. 
570; — or  that  the  plaintiff  In  replevin  was  In  truth  the  owner,  where 
the  Judgment  of  return  was  given  upon  mere  abatement  of  the  writ. 


408  THE    LAW    OF    REPLEVIN. 

or  discontinuance  of  the  action;  the  judgment  of  return  in  such  case 
is  no  adjudication  of  the  title.  Fielding  v.  Silverstein.  70  Conn.  605, 
40  Atl.  454: — or  that  after  the  original  action  was  dismissed  the  de- 
fendant therein  brought  replevin  against  the  plaintiff  therein  and 
recovered  the  same  goods,  with  damages  for  their  detention,  Boyer  v. 
Fowler,  1  Wash.  T.,  N.  S.  101.  And  the  defendants  in  the  actioij  on  the 
bond  may  show  that  the  return  of  the  goods  was  prevented  by  the  ac- 
tion of  the  defendant  in  the  replevin  in  levying  an  ej^ecution  thereon, 
Demers  i\  Clemens,  2  Mont.  385; — or  that  the  goods  were  returned  or 
tendered,  Parker  r.  Oxendine,  85  Mo.  Ap.  212.  And  the  defendant  may 
show  that  after  replevy  of  the  goods  they  were  taken  from  the  officer 
by  superior  right.  Knott  r.  Sherman,  7  S.  D.  522,  64  N.  W.  542.  Where 
the  statute  allows  the  defendants  to  show  in  mitigation  of  damages, 
in  the  action  on  the  bond,  that  the  obligee  had  only  a  special  interest, 
and  that  the  defendants  or  either  of  them  had  an  interest  in  the  same 
goods,  in  an  action  by  an  officer  who  held  under  several  levies,  the 
defendants  may  show  that  one  of  them  is  the  owner  of  one  of  the 
executions,  and  such  defendant  may  have  an  allowance  for  the  amount 
of  that  execution,  Henry  v.  Ferguson,  55  Mich.  399,  21  N.  W.  381;  — 
but,  under  the  same  statute,  defendants  are  not  allowed  for  the  value 
of  goods  in  which  they  show  no  interest,  even  although  not  the 
property  of  the  defendant  in  the  writ  under  which  the  levy  was  made. 
Id.  Where  the  statute  allows  the  successful  defendant  in  replevin 
to  waive  return  and  take  judgment  for  the  value,  all  questions  as  to 
the  damages  must  be  determined  in  the  replevin,  and  cannot  be  re- 
opened in  the  action  on  the  bond,  Simmons  v.  Robinson,  101  Mich.  240, 
59  N.  W.  623.  Return  of  the  goods  and  payment  cf  the  damages  and 
costs  subsequent  to  the  action  on  the  bond,  goes  only  in  mitigation  of 
damages,  the  plaintiff  still  recovers  nominal  damages,  Douglas  v.  Gal- 
wey,  76  Conn.  683,  58  Atl.  2.  The  surety  in  the  replevin  bond  is  bound 
by  a  valid  judgment  against  his  principal,  Christiansen  v.  Mendham, 
45  Ap.  Div.  554,  61  N.  Y.  Sup.  326.  Error  in  the  recitations  of  the  bond 
may  be  cured  by  averment  and  proof  in  the  action  thereon,  Hotz  v. 
Bollman,  47  His.  Ap.  378.  The  judgment  in  one  action  of  replevin  can- 
not be  made  the  basis  of  an  action  upon  the  bond  given  in  another 
cause,  Boyer  v.  Fowler,  1  Wash.  T.,  N.  S.  101.  Matters  litigated  in  the 
replevin  cannot  be  re-examined  in  the  suit  on  the  bond,  Colorado 
Springs  Co.  v.  Hopkins,  5  Colo.  206,  Smith  v.  Bowers,  89  N.  W.  596; 
Palmer  v.  Emery,  91  His.  Ap.  207;  Seldner  v.  Smith,  40  Md.  602.  The 
recitals  of  the  bond  conclude  the  obligors  therein,  Carver  v.  Carver,  77 
Ind.  498.  The  condition  of  the  bond  for  the  payment  of  "  such  sums  as 
may  for  any  cause  be  recovered,  etc.,"  entitles  the  obligee  to  recover  of 
the  sureties  his  costs  and  damages  in  the  replevin,  although  there  was 
no  judgment  for  return,  Katz  v.  American  Co.,  86  Minn.  168,  90  N.  W. 
37G.  The  judgment  in  replevin  is  conclusive  as  to  the  value,  Smith  v. 
Mosby,  98  Ind.  446.  Two  actions  of  replevin  are  instituted  at  the  same 
time  by  the  same  plaintiff  against  the  same  defendant,  and  bond  in 
the  same  terms,  and  with  the  same  surety  given,  in  each;  the  defendant 


THE  BOND.  409 

in  replevin  may  recover  upon  both  bonds  if  he  prove  breach  of  both, 
though  it  is  impossible  to  determine  in  which  of  the  two  actions  either 
bond  was  given.  McManus  v.  Donohoe,  175  Mass.  308.  56  N.  E.  291. 
Where  the  condition  of  the  bond  was  to  pay  all  moneys  "  adjudged 
against  plaintiffs."  damages  for  the  unlawful  taking  and  detention  can- 
not be  recovered  in  an  action  on  the  bond,  unless  ascertained  and 
judgment  given  therefor  in  the  replevin,  Daniels  v.  Mansbridge,  Ind.  T., 
69  S.  W.  815.  It  seems  that  in  the  action  on  the  bond  any  indebtedness 
of  the  plaintiff  to  the  principal  defendant,  not  litigated  and  determined 
in  the  replevin,  may  be  set  off,  Foster  v.  Napier,  74  Ala.  393;  but  where 
the  bond  is  to  two,  a  set-off  of  a  demand  against  one  of  them  cannot  bo 
pleaded,  even  with  the  averment  that  the  other  obligee  has  no  interest, 
Ringgenberg  r.  Hartman,  124  Ind.  18G,  24  N.  E.  987.  Where  the  judg- 
ment directs  the  delivery  of  the  goods  to  an  intervenor,  or  an  assignee 
of  the  plaintiff,  the  bond  is  answerable  for  this  judgment,  Grubbs  k 
Stephenson.  117  N.  C.  66,  23  S.  E.  97. 

The  obligation  of  the  surety  is  determined  by  the  statute,  and  if  by 
the  statute  the  condition  of  his  liability  is  that  judgment  shall  be  ren- 
dered against  the  principal,  the  fact  that  circumstances,  accidental  or 
otherwise,  render  a  judgment  impossible,  cannot  enlarge  the  liability; 
e.  g.,  where  the  justice  before  whom  the  writ  was  returnable  did  not 
attend  on  that  day  and  the  writ  abated,  Scott  v.  Scott,  50  Mich.  372,  15 
N.  W.  515.  The  common  law  cannot  be  invoked  to  enlarge  the  lia- 
bility of  the  sureties,  Id.  Where,  after  judgment  of  discontinuance, 
the  defendant  not  having  demanded  the  return  of  the  goods  by  his 
answer,  an  action  is  brought  upon  the  replevin  bond,  the  surety  may 
plead  as  a  partial  defense  that  in  the  replevin  the  now  plaintiff  merely 
denied  possession  or  detention  of  the  goods  and  never  demanded  their 
return,  Freeman  v.  United  States  Co.,  43  Misc.  364,  87  N.  Y.  Sup.  493. 

Equitable  Defenses. — The  action  of  replevin  was  dismissed  and  judg- 
ment for  the  value  given  against  plaintiff  and  his  surety;  pending  this 
motion  plaintiff  returned  the  goods  to  the  officer  by  whom  they  were 
seized,  and  brought  a  second  action  of  replevin  for  the  same  goods; 
these  circumstances  and  the  insolvency  of  the  defendant  were  held 
no  ground  to  restrain  the  execution  of  the  judgment  upon  equitable 
petition.  Block  v.  Tinsley.  95  Ga.  436,  22  S.  E.  672.  The  securing  of  a 
judgment  lien  upon  lands  of  the  principal  obligor  will  not  be  enter- 
tained a.s  an  equitable  defense  to  an  action  on  the  bond,  Bradley  v. 
Reynolds,  61  Conn.  272,  23  Atl.  928.  After  judgment  of  discontinuance 
and  for  return  of  the  goods  or  payment  of  the  value,  with  costs,  tli- 
surety  in  the  replevin  bond  may,  on  motion  seasonably  made,  be  per- 
mitted to  proceed  with  the  prosecution  of  the  re])levin,  for  his  own 
protection,  and  the  Judgment  will  be  vacated  so  far  as  to  admit  such 
prosecution;  otherwise  It  is  ordere  i  to  stand,  and  in  such  case,  a 
pending  action  on  the  bond  will  be  stayed  until  the  final  trial  and 
determination  of  the  replevin,  Hoffman  v.  Sti-inau,  34  Hun,  230.  And 
the  surely  In  the  forthcoming  bond  Is  permlttt'd  to  come  In  and  doft-nd 
the  action.  BoesHneck  v.  Bab..  27  Misc.  379,  58  N.  Y.  Sup.  SI'.t.     If  the 


410  THE    LAW    OF    REPLEVIN. 

goofls  were  purchased  by  defendant  in  the  replevin,  of  the  plaintiff  in 
the  action,  upon  credit,  and  the  price  remains  unpaid,  the  surety  In  the 
replevin  bond  may  have  the  amount  of  this  indebtedness  set  off 
against  the  value  of  the  goods.  The  surety  is  subrogated  to  all  the 
rights  of  his  principal,  Seldner  v.  Smith,  40  Md.  602; — the  fact  that 
the  plaintiff  in  replevin  did  not  unite  in  the  bond  does  not  change  the 
rule,  /(/.  The  fact  that  the  notes  given  for  the  price  of  the  goods  are 
not  delivered  up,  at  the  trial  of  the  action  on  the  bond  does  not  deprive 
the  surety  of  his  right  to  this  deduction,  where  it  appears  that  the 
notes  have  previously  been  tendered  to  the  plaintiff  in  the  action  on 
the  bond,  and  refused.  In  such  case  the  sureties  cannot  be  required  to 
produce  them  nor  indemnify  the  plaintiff  against  liability  thereon,  Id. 

Where  by  express  statute  a  remedy  is  afforded  to  the  sureties,  by 
which  they  may  obtain  exoneration  from  a  judgment  impeachable  for 
fraud,  or  irregularity,  and  this  remedy  is  lost  by  their  laches,  equity 
will  not  grant  relief,  McBrayer  v.  Jordan,  Neb.  103  N.  W.  50. 

Evidence. — The  defendants  cannot  show  that  the  goods  have  less  value 
than  stated  in  the  return  of  the  writ  of  replevin,  Washington  Co.  v. 
Webster,  125  U.  S.  426,  31  L.  Ed.  799;  but  the  plaintifif  may  prove  a 
greater  value.  Id.  The  sureties  are  bound  by  the  adjudications  neces- 
sarily made  in  the  replevin,  Id.  The  bond  is  evidence  of  the  value  of 
the  goods,  and  sufficient  if  not  contradicted,  V/right  v.  Quirk,  105  Mass. 
44;  but  it  may  be  contradicted.  Id.  In  an  action  on  the  bond  the  offi- 
cers' return  and  appraisal  are  no  evidence  against  the  plaintiff  who  had 
no  part  in  procuring  them,  Wright  v.  Quirk,  supra,  Leighton  v.  Brown, 
98  Mass.  515.  The  original  files  in  the  replevin  suit  are  admissible  as 
evidence  in  the  action  on  the  bond,  Keenan  v.  Washington  Co.,  8  Idaho, 
383,  69  Pac.  112.  The  affidavit  in  replevin  is  prima  facie  evidence  of 
the  value  of  the  goods,  Farson  v.  Gilbert,  85  Ills.  Ap.  364.  Neither 
party  is  bound  by  the  valuation  made  by  the  sheriff  for  the  purpose  of 
fixing  the  amount  of  the  bond,  Peacock  v.  Haney,  37  N.  J.  L.  179.  The 
value  of  the  goods  shown  on  a  particular  day  will  be  presumed  to  be 
the  value  at  a  later  day  in  the  absence  of  evidence  to  the  contrary, 
Norwood  V.  Interstate  Bank,  Tex.  Civ.  Ap.  45  S.  W.  927.  The  clerk's 
fee  book  containing  the  taxation  of  the  costs  is  admissible,  Langdoc  v. 
Parkinson,  26  Ills.  Ap.  137.  The  plaintiff  has  the  burden  of  proving  a 
breach  of  the  bond,  Gallup  v.  Wortman,  11  Colo.  Ap.  308,  53  Pac.  247. 
A  copy  of  the  record  of  the  court  in  which  the  cause  was  finally  deter- 
mined, after  a  change  of  venue,  certified  by  a  deputy  of  the  clerk  of 
that  court,  is  evidence  in  the  action  on  the  bond,  Schott  v.  Youree,  142 
Ills.  233.  31  N.  E.  591. 

The  sheriff's  return  upon  the  execution  that  the  goods  cannot  be 
found,  is  conclusive,  and  justifies  a  suit  on  the  bond.  The  return  binds 
parties  and  privies,  Irvin  v'.  Smith,  66  Wis.  113,  27  N.  W.  35.  28  Id.  351. 

Measure  of  Damages. — The  plaintiff  recovers  the  full  value  though  no 
breach  is  shown,  but  a  failure  to  prosecute  the  replevin,  Manning 
V.  Manning,  26  Kans,  98.  McVey  v.  Burns,  14  Kans.  291.  The  defend- 
ant prevailing  in  the  replevin  will,  where  the  plaintiff  is  without  right. 


THE  BOND.  411 

recover  not  merely  the  value  of  a  special  interest  which  he  has,  but 
the  full  value,  holding  the  excecs  for  the  general  owner,  Atkins  t'.  Moore, 
82  Ills.  240.  If  the  defendant  in  replevin  is  the  sheriff  and  holds  the 
goods  under  execution,  and  plaintiff  in  the  replevin  is  the  general 
owner,  the  sheriff  in  the  action  on  the  bond  recovers  the  debt,  if  less 
than  the  value  of  the  property;  if  the  debt  and  costs  exceed  the  value 
then  the  same  as  any  other  successful  defendant;  if  the  replevin  is  by 
a  mere  stranger  the  sheriff  recovers  the  full  value,  holding  the  surplus 
over  the  debt  and  costs,  if  any,  for  the  true  owner,  Treman  v.  Morris, 
9  Ills.  Ap.  237.  If  the  amount  of  the  execution  lien  is  not  shown  it  will 
be  presumed  to  exceed  the  value  of  the  goods.  Id.  The  obligee  in  the 
bond  recovers  the  full  value,  whether  he  has  any  beneficial  interest  or 
not,  Smith  v.  Hertz.  37  Ills.  Ap.  36,  Wheat  i".  Bower.  42  Ills.  Ap.  COO. 
The  plaintiff  recovers  the  value  of  his  interest  in  the  goods,  with  inter- 
est from  the  time  they  were  replevied,  Gould  v.  Hayes,  71  Conn.  86,  40 
Atl.  930.  The  bond  is  in  effect  a  contract  of  indemnity,  the  obligee  is 
to  be  placed,  so  far  as  money  can  do  so,  in  the  position  he  would  have 
occupied  if  there  had  been  no  replevin,  Bradley  v.  Reynolds,  61  Conn. 
272,  23  Atl.  928.  And  the  value  is  to  be  estimated  as  of  the  time  when 
the  goods  were  replevied,  and  damages  for  the  detention  are  to  be 
added.  Id.  The  value  is  to  be  estimated  as  of  the  date  of  the  ap- 
proval of  the  bond  with  legal  interest,  McLeod  Co.  v.  Craig,  Tex.  Civ. 
Ap.,  43  S.  W.  934;  but  in  Meyers  v.  Bloon,  20  Tex.  Civ.  Ap.  554,  50 
S.  W.  217,  it  was  held  that  the  value  of  the  goods  at  the  date  of  the  trial 
is  the  basis  of  the  judgment,  with  such  special  damages  as  may  be 
alleged  and  proved,  Talcott  v.  Rose,  Tex.  Civ.  Ap.  64  S.  W.  1009.  In 
Illinois  the  court  rejected  the  rule  which  gives  the  highest  market 
value  of  the  goods  between  the  taking  or  conversion,  and  the  trial, 
Treman  v.  Morris,  9  Ills.  Ap.  237,  citing  M.  &  T.  Bank  v.  F.  &  M.  Bank, 
60  N.  Y.  40,  Douglas  v.  Kraft,  •■  Calif.  562;  the  rule  in  Illinois  is  the 
value  at  the  time  of  the  taking  or  conversion,  Treman  v.  Morris,  9 
Ills  Ap.  237,  citing  Sturges  v.  Keith,  57  Ills.  451;  in  Maine,  the  value  at 
the  time  of  the  conversion,  with  interest,  Washington  Co.  v.  Webstoi", 
62  Me.  341;  in  New  Jersey  the  value  at  the  time  of  the  recovery;  with 
interest,  Caldwell  v.  West.  21  N.  .1.  L  411;  In  Minnesota  the  value  at 
the  time  of  the  replevin,  Berthold  v.  Fox,  13  Minn.  501;  in  Tennessee 
the  value  at  the  time  of  the  replevin,  with  any  appreciation,  to  the 
time  of  the  trial,  and  with  any  depreciation  not  by  natural  causes,  added 
as  damages,  Mayberry  v.  Cllffe,  7  Cold.  117.  cited,  in  Treman  v.  Morris, 
supra.  If  the  goods  are  valuable  in  use  the  defendant  recovers  dam- 
ages !n  this  respect,  and  he  may  have  the  damages  assessed,  either  In 
the  replevin  or  In  the  action  on  the  bond,  Id.  But  see  routra,  they 
must  be  assessed.  In  the  action  of  rpjjlevln,  Simmons  v.  Robinson,  101 
Mich.  240.  r,9  N.  W.  623.  In  Davis  v.  Fenner,  12  R.  I.  21.  It  was  hold 
that  whore  recovery  has  been  had.  In  an  action  on  the  bond,  of  dam- 
aRPH  for  tho  taking  and  detention  of  the  Koods.  the  plaint  iff  In  th;it 
action  will  not  be  allowed  to  recover  In  a  second  action,  the  value  of 
the  use  while  the  goodH  were  in  possession  of  the  |)laintlfr  In  replevin. 


412  THE    LAW    OF    REPLEVIN. 

even  though  he  In  fact  used  the  property  as  his  own.  If  the  value  of 
the  use  is  allowed,  interest  is  precluded;  but  interest  is  allowed  where 
the  property  is  not  valuable  in  use,  Treman  v.  Morris,  supra.  And 
where  the  property  has  increased  in  value  between  the  time  of  the 
replevin  and  the  judgment  for  return,  the  defendant  should  be  awarded 
such  increase  in  addition  to  interest.  Id. 

In  Texas  it  is  held  that  the  time  when  the  value  of  the  goods  should 
be  assessed  in  the  action  on  the  bond,  will  vary  with  the  circumstances 
of  the  case;  it  seems  it  should  be  made  either  as  of  the  date  of  the 
replevy,  or  as  of  the  date  of  the  triol,  McLeod  Co.  v.  Craig,  Tex.  Civ.  Ap., 
43  S.  W.  934.  By  statute  in  Texas  the  mortgageor  replevying  the  mort- 
gageid  goods  is  not  required  to  account  for  the  fruits,  hire,  or  revenue 
thereof,  and  the  sureties  are  not  bound  therefor,  even  though  the  con- 
dition of  the  bond  so  provides,  Id.  If  there  be  a  judgment -for  the 
return  of  the  soods  and  the  plaintiff  in  the  action  on  the  bond  assigns 
as  a  breach  the  non-return  thereof,  he  recovers  the  value  of  the  goods 
with  interest,  Pace  v.  Neal,  92  Ills.  Ap.  416;  and  a  judgment  that  the 
cause  be  dismissed  "  and  that  a  writ  of  retorno  habendo  be  and  is 
hereby  awarded  "  is  sufficient  to  entitle  the  defendant  to  recover  in  the 
action  on  the  bond  the  value  of  the  goods  replevied  and  not  returned, 
Tanton  v.  Slyder,  93  Ills.  Ap.  455.  The  sheriff  suing  on  the  bond 
should  be  allowed  a  sum  which  will  enable  him  to  pay  all  liens  \ipon 
the  goods  replevied,  which  he  would  have  been  required  to  discharge  if 
he  had  retained  and  sold  the  goods  under  his  process.  Id.  The  plain- 
tiff recovers  interest  on  the  value  of  the  goods.  Schott  v.  Youree,  41 
Ills.  Ap.  476.  The  plaintiff  in  the  action  on  the  bond  recovers  only 
the  damage  which  he  has  sustained  by  the  taking  of  the  goods,  Seldner 
V.  Smith.  40  Md.  602.  Where  the  goods  were  purchased  by  defendant 
in  replevin  of  the  plaintiff  in  that  action,  and  have  not  been  paid  for, 
the  measure  of  damages  in  the  action  on  the  bond  is  the  costs  of  the 
replevin  suit  and  the  profits  which  might  have  been  made  upon  the 
sale  of  the  goods  if  they  had  not  been  taken.  Id.  Generally,  the  meas- 
ure of  damages  is  the  value  of  the  goods,  with  interest  from  the  date 
of  the  judgment  for  return,  and  the  costs  of  the  action  of  replevin. 
Peacock  v.  Haney,  37  N.  .1.  L.  179.  The  complaint  described  twenty 
thousand  feet  of  lumber  "loaded  on  four  cars  at  Huntsville  depot"; 
held,  that  in  the  action  on  the  bond  that  plaintiff  might  recover  the 
value  of  the  whole  amount  of  lumber  upon  the  four  cars  though  greatly 
exceeding  twenty  thousand  feet.  Story  v.  O'Dea,  23  Ind.  326.  In  Har- 
mon V.  Collins.  2  Penn.  Del.  36,  45  Atl.  541,  the  court,  on  the  authority 
of  Mcllvaine  v.  Holland,  5  Harr.  226,  held  that  the  measure  of  damages 
is  the  value  of  the  chattels  at  the  time  of  taking  under  the  writ  of 
replevin.  There  can  be  no  recovery  in  excess  of  the  penalty  of  the 
bond,  Kaufman  v.  Wessel,  14  Neb.  162,  15  N.  W.  219;  Kellar  v.  Carr,  119 
Ind.  127,  21  N.  E.  463;  but  if  after  breach  the  sureties  refuse  payment 
they  may  be  made  liable  for  the  penalty  of  the  bond  with  interest 
from  the  breach,  Carlon  v.  Dixon,  14  Ore.  293,  12  Pac.  394;  Leighton  v.' 
Brown,  98  Mass.  515;  Brainard  v.  Jones,  18  N.  Y.  35;  Wyman  v.  Robin- 


THE  BOND.  413 

son,  73  Me.  384.  If  the  condition  of  the  bond  be  to  return  the  goods 
in  like  good  order  and  condition,  etc.,  and  part  only  of  the  goods  are  re- 
turned, and  the  residue  are  not  returned,  or  not  returned  in  the  same 
good  condition,  the  sureties  are  liable  for  the  value  at  the  time  of  the 
taking,  of  what  are  not  returned,  and  for  the  depreciation  in  value  of 
what  are  returned,  Washington  Co.  v.  Webster,  125  U.  S.  426,  31  L.  Ed. 
799;  Franks  v.  Matson,  211  Ills.  338,  71  N.  E.  1011.  The  judgment  in  the 
replevin  is  conclusive  in  the  action  on  the  bond,  both  as  to  the  value 
and  the  plaintiff's  interest,  Cantril  r.  Babcock,  11  Colo.  142,  17  Pac.  296, 
IS  Id.  342.  But  if  the  title  to  the  goods  was  not  involved  in  the  issues 
In  the  replevin,  any  judgment  in  that  action  attempting  to  settle  the 
title  will  be  ignored  by  the  courts  whenever  an  attempt  is  made  to 
take  advantage  of  it,  Ringgenberg  v.  Hartman,  124  Ind.  186,  24  N.  E. 
987;  see  Gallup  v.  Wortman,  11  Colo.  Ap.  308,  53  Pac.  247.  Damages 
for  the  non-return  of  the  goods  cannot  be  recovered  unless  there  was  a 
judgment  for  return,  Myers  v.  Dixon,  106  Ills.  Ap.  322;  the  costs  of  the 
replevin  may  be  recovered  though  the  goods  have  been  returned, 
Humphreys  v.  Taggart,  38  Ills.  229.  Where  in  the  replevin  the  defend- 
ant fails  to  demand  the  return  of  the  goods,  by  his  answer,  the  sureties 
in  the  bond  cannot  be  made  liable,  their  liability  is  to  be  determined 
according  to  the  case  as  it  stands  and  not  as  it  might  be  made  by  a 
possible  amendment,  Bown  v.  Weppner,  62  Hun,  579,  17  N.  Y.  Sup.  193. 

The  value  of  the  goods  may  be  recovered,  though  there  was  no  judg- 
ment of  return,  but  only  for  discontinuance,  Kentucky  Co.  v.  Crabtree, 
Ky..  26  Ky.  L.  Rep.,  80  S.  W.  1161. 

Costs  and  Disbursements. — The  costs  made  by  the  defendant  in  the 
replevin  are  allowed  him  in  the  action  on  the  bond,  Kellar  v.  Carr,  119 
Ind.  127,  21  N.  E.  463;  Carlon  v.  Dixon,  14  Ore.  293,  12  Pac.  394.  The 
attorney's  bill  in  the  replevin  is  not  allowed,  Edwards  v.  Bricker,  66 
Kans.  241,  71  Pac.  587;  nor  the  expenses  of  the  preparation  and  conduct 
of  the  defense;  nor  damages  to  defendant's  business.  Id.  In  Illinois 
the  plaintiff  recovers  in  the  action  on  the  bond  his  attorney's  bill  In 
the  replevin  suit  as  jiart  of  his  damages.  Pace  v.  Neal,  92  Ills.  Ap.  416; 
— and  costs  of  printing  necessarily  expended  in  resisting  the  replevin, 
Harts  V.  Wendell,  20  Ills.  Ap.  275. 

The  expense  of  the  maintenance  of  live-stock  takfn  in  execution  and 
replevied,  Is  to  be  allowed  In  an  action  on  the  bond,  even  though 
tendered  while  the  animals  were  held  under  execution;  the  bailment 
being  not  then  terminated  the  party  had  no  right  to  tender  the  expense, 
Davis  V.  Crow,  7  Blf.  129.  The  replevin  bond  does  not  secure  costs  or 
attorney's  fees,  the  condition  being  merely  to  prosecute  to  effect  without 
aelay,  to  make  return  If  return  shall  be  awarded,  and  to  Indemnify 
the  ofllcer,  Reno  v.  Woodyatt,  81  Ills.  Ap.  653;  but  whore  the  bond  was 
condltioiied  to  pay  "  <oRt8  rnd  damages,"  etc.,  the  foes  of  couiisel  of 
defendant  In  the  replevin  were  allowed  In  the  action  on  the  bond,  Slogel 
V.  Hanchett,  33  Ills.  Ap.  634.  Attorney's  fees  may  be  recovered  though 
they  have  not  yet  been  paid  by  the  client,  Id.;  but  In  Indiana  It  was 
held  that  the  provision  of  the  statute  that  the  defendant  shall  recover 


414  THE    LAW    OF    REPLEVIN. 

*•  such  sum  as  shall  be  just  and  equitable  "  and  that  the  plaintiff  if  he 
shall  recover  "  shall  in  like  manner  recover  damages  for  the  detention 
of  the  goods,"  does  not  authorize  the  aFlowanoe  of  the  fees  of  counsel, 
either  in  the  replevin  or  in  the  suit  on  the  bond;  nor  compensation  for 
the  parties'  attendance  at  court,  Davis  v.  Crow,  7  Blf.  129.  Even  though 
the  property  has  been  returned  to  the  defendant  in  replevin,  in  an 
action  on  the  bond,  he  will  be  allowed  his  costs  and  his  attorney's  bill 
in  the  replevin,  Gilbert  v.  Sprague,  196  Ills.  444.  63  N.  E.  993,  reversing 
S.  C,  88  Ills.  Ap.  508.  In  Mississippi  the  surety  is  liable  for  the  costs 
of  the  replevin,  though  the  bond  makes  no  mention  of  costs,  Sparks  v. 
Hopsen,  83  Miss.  124.  35  So.  446.  The  provision  of  the  code  that  the 
successful  party  "  may  have  his  distringas  to  compel  delivery  of  the 
property,  together  with  a  fi.  fa.  for  the  damages  and  costs "  supple- 
ments the  provisions  of  the  replevin  bond  and  makes  the  sureties  there- 
in liable  for  costs,  Phillips  r.  Tooper,  59  Miss.  17.  The  sureties  are 
liable  for  all  the  costs  of  the  suit  on  the  bond  whic^  they  defend,  that 
is,  from  the  time  they  are  made  parties,  McLeod  v.  Craig,  Tex.  Civ.  Ap., 
43  S.  W.  934.  The  cost  of  procuring  the  return  of  the  goods  may  be 
recovered  in  the  action  on  the  bond,  Langdoc  v.  Parkinson,  2  Ills.  Ap. 
136.  And  the  costs  recovered  in  the  replevin  may  be  recovered  under 
the  condition  of  the  bond  to  prosecute  with  effect.  Id.  The  costs  on  the 
•writ  of  replevin,  as  well  as  all  other  costs  in  the  replevin,  arei  re- 
covered, Id. 

Judgment  on  the  Bond. — In  Illinois  the  judgment  on  the  bond  is  for 
the  penalty  as  a  debt,  to  be  satisfied  on  payment  of  the  damages;  but 
the  omission  of  judgment  for  the  debt  is  not  a  fatal  error,  Myers  v. 
Dixon,  106  Ills.  Ap.  322.  The  statute  provided  that  the  defendant  in 
an  attachment  may  replevy  the  property  by  giving  bond  "  in  double  the 
amount  of  plaintiff's  demands,  or,  at  defendant's  option,  in  double  the 
value  of  the  property,  conditioned  to  p  y  the  debt,  interest  and  costs  or 
the  value  of  the  property  attached,  with  interest,  as  the  case  may  be." 
and  that  the  judgment  upon  the  bond  be  "  for  the  penalty  of  the  bond 
to  be  satisfied  by  delivery  of  the  property  or  its  value  or  payment  of 
the  recovery  as  the  case  may  be;  "  it  was  held  that  the  statute  provides 
for  two  distinct  classes  of  bonds,  and  a  bond  conditioned  to  "  pay  the 
debt  and  costs  if  the  court  shall  adjudge  the  same  against  them  or 
either  of  them,  or  shall  adjudge  the  property  subject  to  the  payment  of 
the  same,  they  shall  either  pay  the  debt,  interest  and  costs  or  return  the 
property,"  not  being  distinctly  of  either  class  provided  for  in  the  stat- 
ute, must  be  construed  as  of  the  second  class;  that  the  proper  judgment 
was  for  the  penalty  of  the  bond  to  be  satisfied  by  delivery  of  the  prop- 
erty or  its  value,  Chattanoga  Co.  v.  Evans,  6G  Fed.  809.  The  judgment 
against  the  sureties  in  the  replevin  bond  in  sequestration  proceedings 

,'must  describe  the  goods  and  show  the  value  of  the  separate  articles. 
Herder  v.  Schwab  Co.,  Tex.  Civ.  Ap.,   37   S.   W.   784;    but  not  if  the 

f  record  shows  that  the  goods  have  been  disposed  of.  Id. 

Summary  Judgment. — Summary   judgmept   may   be  entered   against 

^the  sureties  without  notice  to  them,  Glenn  v.  Porter,  68  Ark.  320,  57 


THE  BOND.  415 

S.  W.  1109;  but  where  a  writ  of  sequestration  under  which  the  goods 
have  been  taken,  is  quashed,  judgment  may  not  at  the  same  time  be 
entered  against  the  sureties  in  the  replevin  bond  by  which  defendants 
replevied  the  goods;  quashing  the  sequestration  terminates  the  liability 
of  the  sureties  in  the  replevin  bond,  Mitchell  v.  Bloom,  91  Tex.  634,  45 
S.  W.  558.  Where  the  action  of  replevin  is  dismissed,  the  defendant 
may,  under  the  statute  of  Georgia,  take  judgment  against  plaintiff  and 
the  sureties  for  the  valve  of  the  goods;  no  verdict  is  necessary,  the 
discontinuance  alone  amounts  to  a  judgment  of  restitution,  Thomas  v. 
Price,  88  Ga.  533,  15  S.  E.  11;  Block  v.  Tinsley,  95  Ga.  436,  22  S.  E.  672. 

The  statute  providing  that  if  the  plaintiff  prevails  "  final  judgment 
shall  be  entered  against  all  the  obligees  therein  *  *  *  for  the 
value  of  the  property  replevied  "  judgment  may  be  entered  against  the 
sureties  without  notice  to  them;  and  if  the  principal's  insolvency  is 
shown  judgn-ent  may  be  entcired  against  the  surety  alone,  Cabell  v. 
Floyd,  21  Tex.  Civ.  Ap.  135,  50  S.  W.  478.  Summary  judgment  cannot 
be  entered  against  plaintiff  and  liis  sureties  where  the  bond  is  not  a 
statutory  bond,  Mariany  v.  Lemaire,  Tex.  Civ.  Ap.,  83  S.  W.  215. 

Mitigation  of  Damages. — Where  the  title  was  not  litigated  in  the  re- 
plevin it  may  be  shown  in  mitigation  of  damages  in  the  action  on  the 
bond  that  the  plaintiff  in  replevin  failed  because  his  suit  was  prema- 
turely brought;  or  because  the  parties  to  the  action  were  tenants  in 
common;  or  plaintiff  in  replevin  tenant  in  common  with  a  debtor 
whose  interest  the  defendant  as  sheriff,  had  attached;  or  that  the  de- 
fendant in  the  replevin  has  only  a  special  property  as  against  the  plain- 
tiff; or  any  other  fact  which  the  defendant  is  not  estopped  to  assert  by 
the  judgment  in  replevin,  Leonard  v.  Whitney,  109  Mass.  265.  Where 
the  statute  allows  the  defendant  in  an  action  on  the  bond  to  show  in 
mitigation  of  damoges  the  extent  of  plaintiff's  interest,  the  sureties 
may  in  such  action  show  that  the  plaintiff  had  no  interest  exceiit  under 
a  levy,  which,  as  an  officer,  he  had  made  upon  the  goods,  and  that  the 
demand  for  which  the  levy  was  made  has  been  paid;  or  that  the 
defendant  in  the  suit  in  which  the  levy  was  made  was  adjudged  a  bank- 
rupt within  four  months  after  the  attachment;  because  by  the  bank- 
ruptcy the  attachment  was  dissolved,  the  sheriff's  property  terminated 
and  he  lost  nothing  by  non-return  of  the  goods,  Lindner  v.  Brock,  40 
Mich.  618;  but  the  statute  relied  upon  in  this  case  applies  only  where  the 
obligee  in  the  bond  has  taken  judgment  for  return;  it  has  no  appli- 
cation where  he  has  waived  r'turn  and  his  damages  have  been  assessed 
In  the  action  in  replevin,  Ryan  v.  Akeley,  42  Mich.  516,  4  X.  W.  207. 
In  Indiana  the  court  has  no  power  after  discontinuance  by  the  plain- 
tiff to  award  return  of  the  goods,  Wiseman  v.  Lynn.  39  Ind.  250;  and  a 
plea  that  the  Juugment  of  return  was  given  upon  voluntary  discontinu- 
ance of  the  replevin  Is  a  bar  to  so  much  of  the  action  on  the  bond  as 
demands  the  value  of  the  goods;  and,  wher«'  no  damages  are  alleged 
for  a  failure  to  prosecute,  a  bar  to  the  whole  action,  Ilulman  v.  Benlg- 
hof.  125  Ind.  481,  25  N.  K.  549.  The  dcfcndnnt.s,  may  sliow  that  t'l.' 
principal  In  the  bond  held  a  valid  KubslHling  niortKHKc  upon  the  goods. 


416  THE    LAW    OF    REPLEVIN. 

Ringgenberg  v.  Hartman,  124  Ind.  186,  24  N.  E.  987;— even  if  the  mort- 
gage was  exeouted  by  only  one  of  the  obligees  in  the  bond,  if  the  inter- 
est of  the  other  was  subject  to  the  mortgage,  Id.  By  statute  in  Michi- 
gan the  sureties  in  the  bond  may  show  in  reduction  of  tht  damages  a 
right  in  themselves  or  either  of  them,  in  the  property,  Henry  v.  Fergu- 
son. 55  Mich.  399,  21  N.  W.  381; — but  as  to  any  part  of  the  goods  which, 
in  the  suit  in  replevin,  were  adjudged  to  be  the  general  property  of  the 
plaintiff  in  tnat  suit,  with  a  special  property  in  the  defendant,  it  is 
not  permitted  to  show  that  in  fact  they  are  the  property  of  a  stranger, 
Id.  The  defendants  in  the  action  on  the  bond  may,  where  there  was  no 
judgment  for  return,  show  that  the  defendant  in  the  replevin  was  an 
officer  claiming  only  by  virtue  of  a  levy,  and  that  the  plaintiff  in  re- 
plevin was  the  real  owner,  Jackson  v.  Emmons,  59  Conn.  493,  22  Atl. 
296.  Where  the  judgment  of  return  is  given  upon  mere  abatement  of 
the  writ  the  plaintiff  in  the  replevin  may  in  an  action  on  the  bond 
show  his  title  in  mitigation  of  damages.  Bettinson  v.  Lowery,  86  Me. 
218,  29  Atl.  1003.  citing  Buck  v.  Collins,  69  Me.  445.  Where  the  defend- 
ant's possession  of  the  goods  was  not  disturbed  in  fact,  and  the  goods 
being  afterwards  sold  by  the  plaintiff,  the  defendant  purchased  most  of 
them,  and  the  amount  of  its  purchase  was  returned  to  it,  the  recovery 
in  the  action  on  the  bond  was  limited  to  the  value  of  the  goods  sold  to 
other  parties,  as  of  the  date  of  that  sale,  with  interest  from  that  date, 
Pure  Oil  Co.  v.  Terry,  209  Pa.  St.  403,  58  Atl.  814.  Depreciation  pend- 
ing the  replevin  is  not  to  be  shown  in  mitigation  of  damages  where 
due  to  neglect  or  improper  usage;  the  sureties  are  chargeable  with  this, 
Bradley  v.  Reynolds,  61  Conn.  272,  23  Atl.  928.  The  statute  allowing 
the  plaintiff  in  replevin  to  plead  to  an  action  on  the  bond,  his  own  title, 
and  that  the  merits  were  not  determined  in  the  replevin,  cannot  be 
availed  of,  without  plea,  in  mitigation  of  damages,  Magerstadt  v. 
Harder,  95  Ills.  Ap.  303; — and  the  same  statute  making  an  exception  of 
the  case  "  where  the  plaintiff  shall  have  voluntarily  dismissed  his  suit, 
or  submitted  to  a  non-suit,"  it  was  held  that  if  the  plaintiff  had  sub- 
mitted to  a  voluntary  non-suit  he  should  not  be  allowed  to  prove  his 
title  in  mitigation  of  damages,  Clark  v.  Howell,  3  Colo.  564; — and  the 
plaintiff  in  the  action  on  the  bond  recovers  nominal  damages  though 
the  defendants  prevail  on  the  statutory  plea,  Schweer  v.  Schwabacher, 
17  Ills.  Ap.  78.  Goods  taken  under  an  attachment  were  replevied  and 
the  action  failed;  in  an  action  by  the  attaching  officer  on  the  bond,  the 
defendant  attempted  to  recoup  damages  for  a  false  return  in  the  at- 
tachment; it  was  held  properly  excluded,  Wright  v.  Quirk,  105  Mass.  44. 
Defendants  in  the  action  on  the  replevin  bond  may  reduce  the  plain- 
tiff's recovery  to  nominal  damages  by  a  proof  of  title  in  the  plaintiff  in 
replevin  and  his  right  to  possession,  Miller  v.  Cheney,  84  Ind.  466.  In 
Connecticut,  in  an  action  on  the  replevin  bond,  where  the  replevin  was 
discontinued,  the  defendants  were  allowed  to  show  in  mitigation  of 
damages  that  the  plaintiff  in  the  action  on  the  bond,  defendant  in  the 
replevin,  held  the  goods  as  an  officer  under  execution  against  a  third 
person,  and   that   this   person   had   no   title   to   the  goods,  Jackson  v. 


THE  BOND.  417 

Emmons,  59  Conn.  493,  22  Atl.  296.  The  sheriff  under  an  attachment 
against  William  Coyne,  seized  his  interest  in  a  certain  partnership; 
Coyne's  wife  and  two  others,  claiming  to  be  this  company,  replevied  the 
goods;  it  was  determined  in  the  i-eplevin  that  Coyne  was  the  partner, 
and  not  his  wife,  and  there  was  a  judgment  for  return;  held  in  an 
action  on  the  bond  that  the  defendants  might  show  in  mitigation  of 
damages  what  the  interest  of  Coyne  in  the  firm  was,  Hannon  ik  O'Dell, 
71  Conn.  698,  43  Atl.  147.  Where  the  right  of  property  was  determined 
in  the  replevin  it  cannot  be  brought  in  question  in  the  action  upon  the 
bond,  even  in  mitigation  of  damages.  Buck  v.  Collins,  69  Me.  445;  but 
the  defendants  may  show  anything  not  necessarily  inconsistent  with 
the  judgment  in  replevin  which  could  not  have  been  presented  therein  as 
a  valid  reason  for  denying  the  order  of  return,  and  which  tends  to  show 
that  full  indemnity  will  be  given  by  the  payment  of  a  less  sum  than 
the  value  of  the  goods  and  interest.  Id.;  but  if  the  pleadings  in  the  re- 
plevin are  puch  that,  if  the  testimony  proposed  in  mitigation  of  dam- 
ages in  the  action  on  the  bond  had  been  presented  in  the  replevin,  no 
Older  of  return  would  have  been  made,  the  judgment  of  retorno  must 
be  regarded  as  conclusive  and  the  evidence  inadmissible.  Id.  Collins 
brought  replevin  against  Buck,  and  Buck  justified  as  the  servant  of 
Edson  and  prevailed.  In  an  action  on  the  bond  evidence  that  with 
the  privity  and  consent  of  Buck  the  goods  were  taken  in  a  second 
replevin  at  the  suit  of  Edson  v.  Collins,  while  the  first  replevin  was 
pending,  was  held  inadmissible,  because  such  evidence  would  have  de- 
feated the  judgment  of  retorno.  Id.  Material  was  delivered  by  a  miller 
to  a  cooper  to  be  manufactured  into  barrels;  when  a  portion  of  it  had 
been  manufactured  the  miller  demanded  the  residue;  held  that  the 
cooper  was  entitled  to  a  lien  upon  it  for  any  balance  due  him  for  work 
already  performed  and  for  any  damages  which  he  might  sustain  by 
being  prevented  from  completing  his  contract,  and  that  these  allow- 
ances must  be  made  in  an  action  on  the  replevin  bond,  McCrory  v. 
Hamilton,  39  Ills.  Ap.  490.  Where  in  replevin,  by  one  claiming  under  a 
sale  from  L.  against  an  officer  claiming  under  a  levy  upon  e.xecution 
against  L,  the  defendant  prevails,  and  it  appears  that  pending  the 
action  the  goods  have  been  taken  from  plaintiff  by  another  officer, 
under  "execution  in  favor  of  the  same  creditor,  the  defendant  should 
recover  costs  only.     Culver  v.  Handle,  45  Ore.  491,  78  Pac.  394. 

The  breach  assigned  being  upon  the  condition  for  return  of  the  goods 
if  the  action  should  abate  or  be  discontinued,  property  in  the  plain- 
tiff in  replevin  goes  in  mitigation  of  damages  only;  in  New  York  it 
must  be  pleaded  as  a  partial  defense,  Freeman  v.  United  States  Co.,  87 
N.  Y.  Sup.  493. 

The  value  of  the  goods  may  be  ascertained  In  an  action  on  the  bond; 
It  Is  not  essential  that  there  should  be  an  assessment  of  damages  In  the 
action  of  replevin,  PUtHburgh  Bank  v.  Hall.  107  Pa.  St.  583. 

The  condition  of  the  bond  being  to  "  prosecute  the  said  replevin  to 
final  judgment  and  for  such  damages  and  costs  as  said  defendant  shall 
recover,  and  resloro  the  same  good::  and  rhattels.  etc.,  In  case  such 
27 


418  THE    LAW    OF    REPLEVIN. 

shall  be  the  final  judgment," — it  was  held  proper  to  assess  in  the 
rtplevin  suit  the  damages  sustained  by  the  detention,  and  in  the  suit 
on  the  bond  the  value  of  the  goods.  It  seems  the  plaintiff  in  the  ac- 
tion on  the  bond  may  in  that  action  recover  the  value  of  the  goods 
if  not  returned,  and  damages  for  the  detention  thereof,  and  although 
interest  upon  the  value  of  the  goods  has  been  allowed  in  the  replevin, 
interest  from  the  date  of  the  verdict  in  that  action  may  be  allowed  in 
the  action  on  the  bond,  Washington  Co.  v.  Webster,  125  U.  S.  426,  31 
L.  Ed.  799.  Damages  occasioned  by  the  detention  of  the  property, 
e.  g.,  the  machinery  of  a  factory,  from  interruption  in  business,  and 
the  expense,  delay  and  annoyance  of  replacement,  must  be  estimated  in 
the  replevin  and  cannot  be  assessed  in  the  action  on  the  bond,  Stevens 
V.  Tuite,  104  Mass.  328. 

Where,  by  his  answer  in  the  replevin,  the  defendant  makes  no  claim 
for  damages,  the  question  is  not  in  issue,  and  no  damages  can  be 
awarded  to  him;  and  an  allowance  of  damages  and  judgment  thereon 
in  his  favor,  does  not  preclude  him  from  claiming  additional  damages 
in  an  action  on  the  bond,  Gould  v.  Hayes,  71  Conn.  86,  40  Atl.  930.  And 
where  the  bond  is  conditioned  to  pay  "  all  damages  sustained,  etc.", 
the  defendant  prevailing  need  not  have  his  damages  assessed  in  the 
replevin,  but  may  demand  them  in  an  action  on  the  bond,  Id.  Where 
the  defendant  in  the  replevin  does  not  claim  damages  in  that  action 
he  may  have  them  assessed  in  the  action  on  the  bond,  Quinnipiac  Co.  v. 
Hackbarth,  74  Conn.  392,  50  Atl.  1023.  Substantial  damages  may  be  re- 
covered for  the  period  which  a  license  to  sell  liquors,  the  subject  of 
the  replevin,  had  to  run  after  the  date  of  the  judgment  of  retorno.  Id. 
Exemplary  damages  are  not  recoverable  on  an  action  on  the  bond,  but 
only  the  actual  damages  sustained  by  the  wrongful  suing  out  of  the 
writ,  Dalby  v.  Campbell,  26  Ills.  Ap.  502. 


THE  WRIT. 


419 


CHAPTER   XV. 


THE  WRIT. 


Section 

To  whom  addressed,  and  tlie 
mandate 

Must  contain  summons  to  tlie 
defendant         .... 

Must  describe  the  particular 
property  

Alias  writ 

Writ  lies  for  property  in  the  ju- 
risdiction of  the  court  when 
it  issued 

The  return  of  the  writ 

At  common  law,  plaintiff  took 
the  property  as  his  own,  and 
might  so  dispose  of  it     . 

Property  now  regarded  as  in  the 
custody  of  the  law  . 


463 

464 

465 
466 


467 

468 


469 


470 


Section. 

Injury  to  goods  while  in  plain- 
tiff's possession 

Rights  of  the  plaintiflf  to  prop- 
erty taken  on  the  writ    . 

The  same     ..... 

The  same.  Delivery  on  the 
writ  does  not  confer  title 

The  same.  Where  the  action 
is  for  a  distress 

Tlie  effect  of  the  writ  on  the 
rights  of  the  parties  pending 
the  suit 

The  same 

The  same.  Illustrations  of  the 
rule 

The  same.     Observations  upon  479 

The  same 480 


471 

473 
473 

474 

475 


476 

477 

478 


§  463.  To  whom  addressed,  and  the  mandate.  The  writ 
is  usually  addressed  to  the  slieiill' ;  but  if  \iv.  is  a  party,  it  may 
be  addres.sed  to  the  coroner.  When  the  writ  was  addressed  to 
the  sheriff,  and  was  .served  by  tlie  coroner,  the  plaintiff  was  per- 
initted  to  amend  it  by  in.serting  the  word  coroner  in  the  directory 
part.'  In  its  usual  form  it  cont;iins  a  mandate  to  the  otticer  to 
take  and  deliver  tlie  property  described ;  tliough  l)y  statute,  in 
many  of  the  StjiU'.s,  it  may  issue  without  the  order  for  dtdivery. 
The  mandate  in  the  writ  for  tlie  <lelivery  of  tlie  goods  is  usually 
upon  condition  that  the  plaintiff  shall  lii'st  execute;  the  ])ond,  and 
upon  tin;  neglect  of  the  plaintill"  to  do  so,  the  sheriff  cannot  take 
the  proi)erty.     In  other  States  the  clerk    Uikf.'s  the  bond  before 


•SImcoke  v.  Frederick,  1   Ind.  :a. 


420  THE    LAW    OF    REPLEVIN. 

issuing  the  writ,  and  in  sneli  case  the  shcrill"  has  no  concern  hut 
to  execute  it.  Tliese  matters  depend  entirely  upon  tlie  local 
statutes. 

§404.  Must  contain  summons  to  the  defendant.  It  must 
contain  a  sunnnt)ns  to  the  defendant  to  appear  in  court  and  answer 
the  plaintilT's  claim ;  and  the  sheritl"  should  serve  it  hy  sum- 
moning him  ;  hut  if  the  defendant  appears,  an  omission  of  the 
sherift'  to  serve  it  is  waived.'  It  need  not  show  that  the  aftidavit 
recpiired  hy  the  statute  has  heen  made,^  nor  that  the  hond  has 
heen  filed ;  nor  is  it  essential  that  it  state  the  value  of  the  property, 
though  this  is  usual  and  proper.  It  may  he  issued  for  any  prop- 
erty within  the  jurisdiction  of  the  court  at  the  time  it  is  issued, 
and  tlie  subsequent  removal  of  the  goods  to  defeat  the  writ  will 
not  deprive  the  court  of  jurisdiction,  if  they  are  pursued  and  taken 
by  the  sheriff.^ 

§  465.  Writ  must  describe  the  particular  property.  The 
writ  must  describe  the  property  to  be  seized  and  delivered,  in 
such  a  manner  that  the  sheriff,  from  the  descrijition,  or  from  the 
description  aided  by  inquiries,  can  find  and  deliver  it.  If,  for  any 
defect  or  uncertainty  in  the  description,  it  is  doubtful  what  prop- 
erty is  to  be  taken,  the  sheriff  may  refuse  to  serve  it ;  ^  and  if  the 
writ  omit  to  describe  the  goods  to  be  taken,  it  will  be  quashed, 
even  after  appearance  ;  *  but  this  is  not  necessary,  unless  the  writ 
commands  a  delivery  of  the  goods.  When  it  is  simply  a  sunnnons, 
the  articles  need  not  be  described."  The  description  ought  to  be 
as  full  and  particular  as  the  circumstances  of  the  case  will  warrant, 
so  that  if  the  officer  can  take  part,  but  cannot  find,  or  for  any 
reason  cannot  take  the  remainder,  he  may  do  so,  and  make  return 
of  his  doing  under  the  writ.^ 

§  406.  Alias  writ.  AVhere  the  property  has  been  seized  and 
delivered  upon  the  command  of  the  original  writ,  but  the  de- 
fendant has  not  been  served  or  where  the  defendant  was  iin- 

-Swann  v.  Shemwell,  2  Har.  &  G.   (Md.)   283. 

'  Magee  v.  Siggerson,  4  Blackf.  70. 

*  Craft  V.  Franks,  34  Iowa,  504. 

"Smith  V.  McLean,  24  Iowa.  324;  Snedeker  v.  Quick,  6  Halst.  (N.  J.) 
179;   Magee  v.  Siggerson,  4  Blackf.  70. 

"Snedeker  v.  Quick,  6  Halst.  (N.  J.)  176;  DeWitt  v.  Morris,  13  Wend. 
495. 

'Finehout  v.  Grain,  4  Hill,  537. 

"Welch  V.  Smith,  45  Gal.  230.     See  ante,  §  169,  et  seq. 


THE  WRIT.  421 

properly  served,  an  alias  writ  must  issue.^  So,  when  part  or  all 
of  the  goods  embraced  in  the  first  writ  were  not  obtained  by  the 
oflBcer,  an  alias  writ  was  allowed  to  issue  for  the  purpose  of  ob- 
taining them  ;  ^°  and  in  such  case  an  alias  writ  may  issue  to  any 
other  county  than  that  in  which  the  suit  was  brought  and  de- 
fendant found,  the  same  as  in  other  cases  where  such  writs  are 
proper."  Any  other  rule  would  compel  the  plaintiff  to  dismiss 
his  suit,  and  perhaps  do  great  injustice.'-  The  same  practice  has 
been  recognized  in  Xew  York  "  and  in  Florida.'* 

§  467.  Writ  lies  for  property  in  the  jurisdiction  of  the 
court  when  it  issued.  It  seems  that  the  writ  Avill  lie  for 
property  which  was  within  the  jurisdiction  of  the  court  when  it 
was  issued,  and  that  tbe  sheriff  ma}'  pursue  and  take  it  in  another 
county  ;  '^  but  upon  this  point  the  statutes  of  the  different  States, 
as  to  jurisdiction  of  the  sheriff,  may  beat  variance,  and  should  be 
the  guide  to  the  officer. 

§  468.  The  return  of  the  writ.  The  officer's  return  must 
show  how  he  has  executed  the  writ,  set  out,  so  that  the  court 
can  see  what  has  been  done,  and  whether  the  mandate  has  been 
complied  with.  It  ought  to  show,  when  such  is  the  condition  of 
the  writ,  that  the  sheriff"  has  taken  bond,  and  who  the  securities 
are.'* 

§  469.  At  common  law,  plaintiff  took  the  property  as  his 
own,  and  might  so  dispose  of  it.  B}'-  the  common  law,  the 
plaintiff"  took  the  goods  delivered  to  him  on  his  writ  of  rci)l(>viu 
as  his  own  property.  He  might  sc^ll  or  otherwise  dispose  of  them 
pending  the  suit,  as  he  saw  lit.  In  the  theory  of  that  law  the 
property  was  hi.s,  and  had  been  distrained  by  th(>  defendant.  'I'lic 
distrainor  set  up  no  claim  to  the  ownership  of  the  property.  All 
he  claimed  was  a  riglit  to  seize  and  hold  it  as  a  pledge  or  security 
for  rent,  which  he  insisted  was  dneliim."     I'pon  replevin,  in  such 

•O'Brien  v.  Haynes.  61  111.  495. 

'•Maxon  v.  Perrott,  17  Mich.  335. 

"Hiles  V.  MfKurlane.  4  Chanrl.    (Wis.)   89. 

"O'Brien  v.  Haynes,  01   111.  49.">. 

"  Kx  parte  JohnRon.  7  Cow.  424;  Snow  v.  Roy,  22  Wend.  G02. 

"Branch  v.  Bran(  h.  G  Fla.  :515. 

"Craft  V.  Kranl<K,  34   Iowa.  504. 

'•Hays  V.  Bouthalier,  1  Mo.  345;  Pool  v.  l^oomiH,  5  Ark.  lift;  Matt- 
Ingly  V.  Crowley,  42  III.  300;  Miller  v.  Mohch,  56  Me.  134;  NaHhville, 
etc..  V.  Alexander,  10  niimi)h.  378. 

"Gilbert  on  Replevin.  55. 


422  THE    LAW    OF    REPLEVIN. 

cases,  the  plaintilT,  l>y  lii.s  writ,  took  liis  fonner  title  to  the  pvoj)- 
erty,  and  gave  security  that  he  would  show  the  distress  to  have 
been  wrongful.  The  lien  of  the  distniinor  was  gone,  and  its  i)lace 
supplied  by  the  bond.'* 

§  470.  Property  now  regarded  as  in  the  custody  of  the 
law.  In  modern  i)raetiee,  eases  of  distress  comjjrise  but  a  small 
jiortion  of  the  cases  of  replevin,  and  by  the  theory  of  the  hiw  in 
other  eases,  the  ownership  is  determined  by  the  result  of  the  suit. 
l*ending  this,  the  property  is  regarded  as  in  the  custody  of  the 
law,  though  in  the  plaintiff's  possession."  The  writ  does  not 
confer  title  to  the  property  ; '"  but  it  seems,  in  many  cases,  that 
the  plaintiff  acquires  such  an  interest  in  the  property  delivered  to 
him  on  the  writ  as  to  entitle  him  to  sell  or  dispose  of  it,  the  bond 
being  regarded  as  sufficient  to  indcnniify  the  other  party  for  the 
value  of  the  property  in  case  latter  succeeds.-'  To  describe  the 
rights  of  a  plaintiff  to  property  delivered  to  him  pending  the  suit 
is  one  of  the  most  obscure  and  difficult  i>roblems.  No  general 
statement  can  be  made  without  involving  luimerous  exceptions." 

§  471.  Injuries  to  goods  while  in  plaintiff's  possession. 
If  the  goods  are  injured  or  decay  while  in  i)laintiff's  possession,  it 

"3  Bla.  Com.  146;  Lowry  v.  Hall,  2  W.  &  S.  (Pa.)  134;  Speer  v. 
Skinner,  35  111.  282;  Woglam  v.  Cowperthwaite,  2  Ball.  (Pa.)  68;  Frey 
V.  Leeper,  2  Ball.  131;   Bruner  v.  Byball,  42  111.  35. 

"Bruner  v.  Byball,  42  111.  34;  Hardy  v.  Keeler,  56  111.  152;  Stevens  v. 
Tuite,  104  Mass.  332;  Miller  v.  White,  14  Fla.  435;  Milliken  v.  Selye,  6 
Hill.  623.     Compare  Buckley  v.  Buckley,  9  Nev.  379. 

^''Lovett  V.  Burkhardt,  44  Pa.  St.  174;   Burkle  v.  Luce,  6  Hill,  558. 

==•  Cary  v.  Hewitt,  26  Mich.  229„ 

*=  See  post,  §  479,  et  seg.  [In  Wall  v.  BeMitkiewicz,  9  Ap.  B.  C.  109,  it 
was  held  that  a  sale  of  the  goods  by  the  plaintiff  does  not  abate  the 
action;  such  sale  confers  only  such  right  as  the  plaintiff  has,  Caldwell 
V.  Gans,  1  Mont.  570.  After  delivery  of  the  property  to  either  plain- 
tiff or  defendant  it  is  no  longer  in  the  custody  of  the  law;  the  bond 
takes  the  place  of  the  goods  and  affords  the  exclusive  remedy;  the 
party  in  possession  may  dispose  of  them  as  his  own  and  as  if  no  suit 
were  pending;  he  can  make  no  claim  against  the  other  party  for 
depreciation  subsequent  to  that  date,  Katz  v.  Hlavac,  88  Minn.  56,  92 
N.  W.  506.  But  in  Mohr  v.  Langan,  162  Mo.  474,  63  S.  W.  409,  it  was 
held  that  one  who  has  obtained  possession  of  the  goods  by  replevin 
and  who,  pending  the  suit,  disposes  of  them,  is  liable  to  the  other  party 
as  for  a  conversion,  and  those  who  assist  him  are  also  liable.  The 
plaintiff  may  show  a  transfer  of  his  right  by  the  defendant  pending  the 
replevin,  and  thus  defeat  judgment  for  retorno,  Campbell  v.  Quinton, 
4  Kans.  Ap.  317,  45  Pac.  914.] 


THE  WRIT.  423 

must  be  at  his  risk  ;  and  in  the  case  of  fruit,  fresh  meat,  vegeta- 
bles, or  perishable  goods  which  are  valuable  only  for  immediate 
use  or  consumption,  it  would  entirely  defeat  the  object  and 
purposes  of  the  action  if  the  plaintiff  was  obliged  to  keep  them, 
(when  from  their  nature  they  must  perish,)  and  thus  be  re- 
sponsible for  their  full  value  ; "  he  cannot  be  allowed  to  return 
them  in  a  damaged  condition,  witliout  being  liable  for  the  damage.'* 
When  the  property  is  valuable  only  for  use,  as,  for  example,  a 
sewing  machuie  or  horse,  the  plaintiff  is  liable  for  the  value  of 
the  use  while  it  is  in  his  possession,"  and  has  an  undoubted  right 
to  put  the  property  to  use  without  being  liable  for  depreciation 
resulting  from  the  use.  So  where  the  property  was  valuable  only 
for  consumption,  the  plaintiff  in  the  nature  of  things  must  put 
them  to  use  or  bear  the  loss  wliich  their  decay  or  depreciation 
occasions. 

§  472.  Rights  of  the  plaintiff  to  property  taken  on  the 
writ.  If  the  plaintiff"  is  the  general  owner  of  property  seized  on 
execution  or  attachment,  he  may,  after  the  execution  of  a  bond 
and  the  delivery  of  the  property  to  him,  sell  it  and  confer  upon 
the  purchaser  a  good  title  ;  if  he  was  not  such  owner,  he  could 
not.**  The  restoration  of  the  plaintiff's  property  to  his  possession 
invests  him  with  full  power  to  dispose  of  it.  The  execution  of 
the  bond,  and  delivery  of  the  property  under  the  writ,  releases  it 
from  the  lien  of  the  execution,  at  least  so  far  as  that  it  may  be 
sold  and  a  good  title  conveyed  to  a  bona  fide  purchaser." 

§  473.  The  same.  When  the  title  and  the  possession  both 
unite  in  one  person,  the  fact  that  he  acquired  that  possession  by 
virtue  of  a  writ  of  replevin  will  not  debar  him  of  tlie  riglit  to  sell 
and  convey  a  good   title.-'"     So,  where  goods  are  distrained,  the 

"Gordon  v.  Jenney,  16  Mass.  4C9;  Lockwood  v.  Perry,  9  Met.  444; 
Mennle  v.  Blake,  6  E.  &  B.  (88  E.  C.  L.)  843;  Stevens  v.  Tulte.  104 
Mass.  332. 

"Allen  V.  Fox,  51  N.  Y.  562. 

-*  See  Sec.  579,  ct  seq. 

"Bradyll  v.  Ball.  1   Bro.  Ch.  C.  428;    Glmble  v.  Ackley.  12  Iowa.  31. 

''Ginible  v.  Ackley,  12  Iowa,  31;  Woglan  v.  Cowperthwaito,  2  Dali. 
(Pa.)  68;  Frey  v.  Leeper,  2  Dall.  (Pa.)  131;  Burkle  v.  Luce,  G  Hill.  558; 
Jones  V.  Peasley.  3  Greene,  (Iowa,)  52;  Smith  v.  McOrcRor,  10  Ohio  St. 
4C7.  Contra.  Lockwood  v.  Perry,  9  Met.  (Mass.)  440;  Burkle  v.  Luce. 
1  Comst.  (N.  y.)   163;   Hunt  v.  Robinson,  11  Cal.  262. 

"  Donohoe  v.  McAleer.  37  .Mo.  312;  Burkle  r.  Luce.  1  Conist.  (N.  Y. ) 
163. 


41*4  THE    LAW    OF    REPLEVIN. 

tenii.it  iMuy  pay  the  iriit  and  take  his  goods,  discliarged  from  the 
h\ndlord's  chihn,  or  he  may  give  bond  and  replevy  tlie  goods  under 
a  proper  oiler  to  sliow  tliat  the  distress  was  wrongful  ;  in  the 
latter  case,  the  lien  of  the  landlord  is  gone  ;  he  must  look  to  the 
security."-' 

§  474.  The  same.  Delivery  on  the  writ  does  not  confer 
title.  Delivery  by  virtue  of  the  writ  invests  the  plaintiff  with 
the  possession  of  the  property,  and  pending  the  suit,  the  defen- 
dant,  though  he  may  be  the  owner,  cannot  disturb  the  plaintiff's 
right  of  possession.  Such  delivery,  however,  does  not  affect  the 
question  of  ownership ;  it  does  not  in  any  way  tend  to  show  title 
in  the  plaintiff ;  it  is  in  fact  but  a  temporary  right  which  may 
terminate  upon  the  discontinuance  or  abatement  of  the  suit, 
or  by  judgment  against  the  plaintiff.'"  So,  where  the  plaintiff 
wrongfully  sues  out  a  writ  of  replevin  and  obtains  possession  of 
goods,  and  afterwards  dismisses  his  suit,  the  defendant  is  not 
driven  to  a  suit  upon  the  bond,  (unless  it  be  in  case  of  a  distress,) 
but  may  sustani  replevin  for  the  property. 3'  Where  goods  are 
replevied  from  the  possession  of  an  agent  or  bailee  of  the  owner, 
the  latter,  if  a  stranger  to  the  proceeding,  may  sustain  replevin 
from  the  plaintiff  in  the  first  suit.^' 

§  475.  The  same.  Where  the  action  is  for  a  distress. 
By  replevin  of  goods  distrained  the  lien  of  the  distrainor  is  sus- 
pended, but  if  a  return  be  awarded,  and  upon  the  service  of  the 
writ  of  return  they  are  found  in  the  possession  of  the  defendant, 
(the  plaintiff  in  replevin,)  they  may  be  taken  and  returned  to  the 
defendant.^^ 

§  476.  The  effect  of  the  writ  on  the  rights  of  the  parties 
pending  the  suit.  Under  the  statutes  in  this  country,  generally 
the  effect  of  the  writ  is  not  to  divest  th^  title  or  the  lien  of  the 
defendant ;  this  is  affected  only  by  the  judgment  of  the  court 

"Bruner  v.  Dyball,  42  111.  35;    Speer  v.  Skinner,  35  111.  282. 

^Lovett  V.  Burkhardt,  44  Pa.  St.  174;  Speer  v.  Skinner,  35  111.  282; 
Brunner  v.  Dyball,  42  111.  34. 

'■  Bruner  v.  Dyball,  42  111.  35. 

=«  White  V.  Dolliver,  113  Mass.  402;  Globe  etc.,  v.  Wright,  106  Mass. 
207. 

"Burkle  v.  Luce,  6  Hill,  559;  Burkle  v.  Luce.  1  Comst.  (1  N.  Y.) 
163  and  239;  Bradyll  v.  Bal,  Bro.  Ch.  Rep.  427;  Woglam  v  Coper- 
thwaite,  2  Dall.  68;  Acker  v.  White,  25  Wend.  614;  Frey  v.  Leeper, 
2  Dall.  131;  Anon.  Dyer,  280&. 


THE  WRIT.  425 

after  a  hearing.  If  thetitle  could  be  divested  by  the  execution 
of  the  replevin  bond  and  delivery  of  the  goods  upon  the  writ,  tlie 
primary  object  of  the  suit  would  be  defeated — the  unsuccessful 
party  could  always  make  his  election  to  keep  the  goods  or  pay 
the  value.  This  advantage  was  never  intended  by  the  statute  to 
be  given  to  a  party  clearly  in  the  wrong.  Tiie  etfect  of  the  re- 
plevin is  simply  to  give  the  party  the  possession  of  the  property 
pending  the  suit ;  the  title  is  not  changed.  A  sale  made  by  the 
party  so  in  possession,  wlio  afterwards  turns  out  to  have  no  title, 
camiot  convey  title  to  the  purchaser  against  the  real  owner. ^* 
In  California,  it  was  said  i/i  ar;/.  the  real  owner  could  in  such  case 
recover  his  property  even  from  an  innocent  purchaser  ;  that  the 
property  was  in  the  custody  of  the  law,  and  that  all  parties  must 
take  notice.'*  In  the  case  of  ILff/an  v.  J^acas,  10  Peters,  (U.  S.) 
4U0,  Mr.  Justice  McLeax  said,  on  giving  bond  the  property  is 
placed  in  the  possession  of  the  claimant;  his  custody  is  the 
custody  of  the  sheriff ;  the  property  is  not  withdrawn  from  the 
custody  of  the  law.  In  the  hands  of  a  claimant  under  bonds  to 
the  sheriff  for  its  delivery,  it  is  as  far  from  the  reach  of  other 
process  as  it  would  have  been  in  the  hands  of  the  officer.'"  When 
one  replevied  colts,  and  btifore  the  suit  was  determined  sold 
them ;  afterwards  the  suit  was  decided  against  him  and  a  return 
awarded,  the  defendant  in  the  suit  replevied  them  from  the  pur- 
chaser and  was  permitted  Jo  recover  on  his  antecedent  title." 

§  477.  The  same.  When  the  sheriff'  seizes  propeity  upon 
an  execution  or  attachment,  and  it  is  replevied  from  him,  and 
afterwards  he  levies  on  and  takes  possession  of  it  by  virtue  of 
another  execution  or  attaclinient,  it  is  ecjuivalent  to  a  return  of  the 
gfx)ds,  and  operates  as  a  revival  of  the  lien  of  the  first  process ;  in 
other  words,  the  lien  or  sjiecial  property  which  the  officer  acquires 
by  virtue  of  a  levy  of  process  antl  sei/.ure  of  i)roperty,  is  not 
divested  by  a  rci)levin  of  the  property  from  him  ;  he  is  so  far  re- 
gjirded  as  the  owner  that  the  title  which  the  first  i)rocess  con- 
ferred on  him  exists,  notwithstanding  tiic  rei)l('vin.  Should  tli(» 
proiKjrty  come  again  into  his  possession  by  the  levy  of  another 


*♦  I>of.kwoo(J  V.  Perry,  9  Mot.  440. 
"Runt  V.  RoblnHon,  11   Cal.  2«2. 

-Cltod  and  followed  in  RlveH  v.  Wllbornc.  fi  Ala.  46. 
"Ivorkwood    r.    I'rrry.    9    Mrt.     (M.ikh.)    440;    Whitf    r.    Doillvrr.    113 
Mass.  402. 


-i26  THE    LAW    OF    REPLEVIN. 

execution  ov  attachment,  the  hen  of  the  first  process  revives,  and 
the  effect  of  this  is  to  discharge  the  securities.'" 

§  478.  The  same.  Illustrations  'of  the  rule.  Where  an 
execution  from  the  State  Court  was  levied  b}^  the  sheriff  upon 
property  which  was  afterwards  claimed  by  a  stranger  to  the  writ» 
and  he  gave  bond  to  try  the  title,  (a  statutory  proceeding  similar 
in  principle  to  a  suit  in  replevin,)  and  the  goods,  while  so  in  the 
claimant's  possession,  were  levied  upon  by  an  execution  from  the 
United  States  Court,  the  Supreme  Court  of  the  United  States  held 
that  the  property,  though  in  the  possession  of  the  claimant,  was 
in  the  custody^of  the  State  Court,  and  tliat  the  levy  of  the  marshal 
was  erroneous;  that  while  the  property  was  in  the  j^ossession  of 
the  claimant  who  had  given  bond,  his  custody  was  the  custody  of 
the  court  where  his  claim  was  pending  ;  ~tTiat  the  marsHal  had  no 
more  right  to  levy  upon  it  than  if  it  had  been  in  the  actual  pos- 
session ofThe  sheriff  on  execution  from  the  State  Court.'®  A  New 
York  case  held  that  where  woods  seized  upon  execution  were  re- 
plevied from  the  sheriff'  by  a  third  person,  that  the  lien  of  the 
sheriff  was  gone  ;  or  rather,  that  the  plaintiff  in  replevin  took  all 
the  property  which  the  sheriff  had  by  his  .^.  fa.,  and  that  the 
property  could  not  again  be  taken  by  the  officer  on  an  execution 
against  the  defendant  in  the  first  execution.  But  nothing  in 
this  case  appears  to  conflict  seriously  with  the  doctrine  in  Jlimt 
V.  Rohinso7i,  or  Hafjan  v.  Lucas,  supra,  or  the  case  of  Burkle  v. 
J.we,  1  Comst.  (N.  Y.)  163,  which  are  authority  for  saying  that 
the  right  acquired  by  the  plaintiff  in  replevin  is  only  a  temporary 
right ;  that  when  that  right  has  ceased  the  sheriff  may  retake  the 
property  and  sell  it,  thus  clearly  recognizing  the  revival  of  the 
lien  of  the  sheriff.*"  The  doctrine  in  Ilagaji  v.  Lucas,  supra,  is 
clearly~recognized  in  Alabama,  where  it  is  held  that  property 
taken  upon  a  writ  of  replevin  is  in  the  custody  of  the  law,  and 
not  subject  to  other  process  pending  the  suit.^' 

§  479.     The  same.     Observations  upon.     In  attempting  to 

"'  Hunt  V.  Robinson,  11  Cal.  272.  See  and  compare  Goodheart  V. 
Bowen,  2  Bradw.   (111.)   578. 

**  Hagan  v.  Lucas,  10  Pet.  (U.  S.)  400.  The  principle  io  followed  in 
Goodheart  v.  Bowen,  2  Bradw.  (111.)  578.  Acker  v.  White,  25  Wend. 
(N.  Y.)  614. 

"See  M'Rae  v.  M'Lean,  3  Porter,  (Ala.)  138;  Evans  v.  King,  7  Mo. 
411;   Lockwood  v.  Perry,  9  Met.  444. 

"Rives  V.  Wilborne,  6  Ala.  45. 


THE  WRIT.  427 

draw  a  satisfactory  conclusion  from  these  cases  the  diflficulty  lies 
in  the  fact,  that  in  the  early  cases  the  plaintiff  in  replevin  was 
-always  regarded  as  the  owner  of  the  property.  The  writ  did  not 
lie  to  try  title,  but  to  enable  a  plaintiff  whose  goods  had  been 
wrongfully  distrained  to  recover  them.  Of  course,  in  all  such 
cases,  the  owner  then,  as  now,  took  his  own  property.  The  lien 
of  the  distrainer  was  gone."  The  owner  might  sell  and  convey  a 
good  title  as  though  they  had  never  been  taken  from  him.  A 
large  majority  of  the  cases,  however,  now  are  brought,  not  for 
the  purpose  of  recovering  a  pledge  wrongfully  distrained,  but  for 
the  purpose  of  testing  ownership ;  this  is  the  principal,  if  not  the 
only  question  in  dispute  ;  and  it  does  not  by  any  means  follow 
that  the  plaintiff"  who  acquires  possession  of  goods  by  means  of 
his  writ  of  replevin  has  any  title  to  the  property,"  and  if  he  has 
no  title  he  can  convey  none  by  sale.  He  is,  however,  invested 
with  possession  and  the  outward  insignia  of  ownership,  has  given 
bond  to  his  opponent,  which  in  contemplation  of  law  is  sufficient 
to  indemnify  the  latter  against  loss,  whatever  may  be  the  result 
of  the  litigation,  or  whatever  may  become  of  the  subject  of  the 
contest.  The  plaintiff  is  also  under  obligation  to  return  the 
property  if  he  fails  in  his  suit,  in  as  good  order  as  when  taken 
upon  his  writ,  or  to  pay  its  value  in  case  of  failure  to  do  so  ;  with 
these  responsibilities  he  has  the  right  to  use  all  reasonable  means 
to  protect  himself  from  loss." 

§  480.  The  same.  It  would,  therefore,  seem  that  in  cases 
where  the  property  is  of  a  nature  such  as  will  be  likely  to  perish 
or  seriously  diminish  in  value  within  the  time  which  will  probably 
])e  required  for  pn)i)er  litigation,  the  plaintiff  will  be  justifteil  in 
selling,  consuming  or  disposing  of  it.  In  case  he  does  not  do  so 
the  fact  that  the  property  has  perished  will  not  relieve  him  from 
his  liability  on  the  Ijond.  So  in  cases  where  the  property  in  dis- 
pute consists  of  merchandise  valuable  and  u.seful  only  for  i)ur- 
I)Ose8  of  sale,  and  is  sul)ject  to  constant  fluctuations  in  value,  or 
wheti  it  is  vahiabh?  oidy  for  immediate  consumption,  the  plaint ilV 
will,  without  doubt,  have  the  right  to  put  it  to  the  use  for  wiiich 
it  Wiis  proi)erly  and  naturally  adapted,  even  if  it  should  iMV«)lve 

"  Speer   v.   Skinner,    35    III.    290;    WoKlain    r.    Cowpirthwait.',    2    Dull. 
€8;   Acker  v.   White.  25  Wend.  614;    Uradyll    i.   Hall,   Hro.  Ch.  Cii.    JL'7. 
"Lovett  V.  IJurkharflt.  44  Pa.  St.   174. 
*♦  Gordon  v.  Jennoy,  IG  iMa«H.  40'J. 


42S  THE    LAW    OF    REPLEVIN. 

its  sale  or  consumption.  Wlun  the  property  is  valuable  chiefly 
foru.se,  and  will  not  be  likely  to  diiuini.sh  in  value  by  being  kept 
until  the  litigation  can  be  concluded,  the  plaintiff  ought  to  be 
ready  to  restore  it  to  the  defendant,  if  .such  be  the  judgment  of 
the  court.  While  there  seems  to  be  no  direct  authority  to  sustain 
this  doctrine,  it  is  in  entire  harmony  with  the  general  rules  of 
law  governing  such  questions ;  and  unless  the  particular  case 
should  render  some  other  rule  more  apparently  just,  this  will 
doubtless  be  the  holding  of  the  court.^* 

'^'Mayberry  v.  Cliffe,  7  Cold.  (Tenn.)  117;  Gordon  v.  Jenney,  16  Mass. 
469.  In  Ohio  the  statute  formerly  made  no  provision  for  a  return;  the 
plaintiff  obtaining  possession  by  means  of  the  writ,  took  all  the  title 
the  defendant  had.  The  bond  was  supposed  to  protect  the  defendant 
from  loss.  Jennings  v.  Johnson,  17  Ohio,  154;  Smith  v.  McGregor,  10 
Ohio  St.  470.     This  rule,  however,  is  now  changed  by  statute. 

Note  XXVII.  Writ.  Duty  to  Issue. — A  justice  of  the  peace  to  whom 
application  is  made  for  the  writ,  need  not  conduct  any  inquiry  as  to 
the  verity  of  the  complaint  made  to  him,  Watson  v.  Watson,  9  Conn. 
141.  It  is  the  duty  of  the  clerk  of  the  court  to  issue  the  writ  whenever 
the  plaintiff  has  complied  with  the  requirements  of  the  statute;  and 
this  duty  may  be  enforced  by  mandamus,  Easter  v.  Traylor,  41  Kans. 
493,  21  Pac.  606;  the  fact  that  the  property  demanded  is  intoxicating, 
liquors,  and  that  the  defendant  named  in  the  action  of  replevin  is  the 
sheriff  of  the  county  and  has  seized  the  liquors  in  a  criminal  proceed- 
ing against  the  plaintilfs  in  replevin,  is  no  answer  to  such  mandamus. 
Id.  Nor  is  an  injunction  awarded  by  the  same  court  in  which  the 
writ  of  replevin  is  applied  for,  and  .which  restrains  the  clerk  from 
issuing  any  writ  for  the  recovery  of  the  goods  in  question,  Id. 

Frame  of  the  Writ. — The  writ  must  describe  the  goods;  but  if, 
with  the  aid  of  the  plaintiff,  or  information,  aliunde  the  writ,  the  of- 
ficer can  identify  them,  it  is  sufficient,  SeKton  v.  McDowd,  38  Mich.  148. 
If  the  writ  recite  that  the  plaintiff  "  has  given  bond  according  to  law," 
this  is  sufficient,  Watson  v.  Watson,  9  Conn.  141.  The  statute  pre- 
scribing the  form  of  the  writ  and,  among  other  things,  that  it  shall 
direct  the  replevy  of  the  goods  "  provided  the  same  are  not  taken,  at- 
tached or  detained  upon  original  process,  mesne  process,  etc.,"  a  writ 
omitting  the  words  "original  process,"  is  bad;  but  it  may  be  amended, 
Parker  v.  Palmer,  13  R.  I.  359.  A  writ  attested  by  the  seal  of  the  court 
and  the  signature  of  the  clerk  thereof,  omitted  to  set  forth  or  show 
in  the  body  of  it,  from  what  court  it  issued.  Held  the  omission  was  not 
fatal.  State  v.  Wilson,  24  Kans.  50.  A  statute  regulating  the  action 
of  replevin  is  not  controlled  by  differing  provisions  relating  to  actions 
upon  money  demands.  The  fact  that  the  summons  declares  that  in 
case  return  of  the  goods  cannot  be  had  judgment  will  be  given   for 


THE  WRIT.  429 

the  value,  does  not  turn  the  action  into  an  action  for  money,  Kelly 
r.  Kennemore,  47  S.  C.  256,  25  S.  E.  134.  An  alias  writ  of  replevin 
may  issue  directed  to  any  county,  Hiles  v.  McFarlane,  4  Chandl.  89. 

When  Objections  must  be  taken. — A  motion  to  quash  the  writ  for  ir- 
regularity is  too  late  after  an  appearance,  Wyatt  v.  Freeman,  4  Colo. 
14,  Clark  v.  Dunlap,  50  Mich.  492,  15  N.  W.  565,  Tripp  v.  Howe,  45  Vt. 
523.  By  pleading,  a  variance  between  the  writ  and  declaration  is 
waived,  Reeder  v.  Moore,  95  Mich.  594.  55  N.  W.  436.  A  motion  to 
quash  the  writ  will  not  be  entertained  after  the  defendant  has  appeared 
and  assailed  the  declaration  by  demurrer,  Kraemor  v.  Kraemer  Co., 
59  N.  J.  L.  9,  35  Atl.  791. 

Amendment  of  the  Writ. — A  writ  averring  the  taking  in  Boston,  may 
be  amended  to  aver  the  taking  in  Roxbury,  Judson  v.  Adams,  8  Cush. 
556.  A  married  woman  suing  as  sole  plaintiff  may  be  allowed  to 
amend  her  writ,  even  upon  an  appeal,  by  joining  with  her  as  co-plain- 
tiff her  husband  or  next  friend,  Sherron  v.  Hall,  4  Lea.  498.  The  writ 
may  be  amended  by  striking  out  the  words  "  executors  of  the  will  of," 
and  inserting  "  heirs  at  law  of,"  and  by  inserting  the  names  of  other  heirs 
at  law,  Jamieson  r.  Capron,  95  Pa.  St.  15;  and  variance  between  the  writ 
and  the  affidavit  may  be  cureJ  by  an  amendment  of  the  writ,  McCourt 
V.  Bond,  64  Wis.  596,  20  N.  W.  532.  Where  the  statute  expressly  allows 
amendments  in  replevin  of  the  pleadings  and  proceedings,  as  in  other 
actions,  it  is  the  duty  of  the  court  to  allow  amendments  to  cure  variances 
between  the  affidavit  and  the  writ;  e.  g.,  where  the  writ  omitted  three 
out  of  six  partners,  plaintiff,  and  one  of  the  defendants  named  in  the 
affidavit,  Roberts  v.  Gee,  39  Fla.  531,  22  So.  877.  And  where  the  affidavit 
and  bond  have  been  amended,  the  plaintiff  is  entitled  to  amend  his 
writ  accordingly.  Id.  Where  defendant  sued  as  John  Doe,  appeals 
in  his  proper  name,  the  omission  to  amend  the  original  record  so  as 
to  show  his  real  name,  is  immaterial,  Moore  v.  Lewis,  76  Mich.  300, 
43  N.  W.  11.  The  date  of  issuance  may  be  endorsed,  by  leave  of 
the  court  nunc  pro  tunc,  Whitaker  v.  Sanders,  Tex.  Civ.  Ap.,  52  S.  W. 
638.  A  summons  from  the  justice  court  may  be  amended  so  as  to 
state  the  value  of  the  goods,  Whitaker  v.  Dunn,  122  N.  C.  103,  29  S.  E.  54. 
In  an  action  on  the  bond  the  writ  was  amended  so  as  to  read  in  the  name 
of  the  sheriff,  payee  of  the  bond  "  for  the  use  of "  the  defendant  In 
the  replevin,  instead  of  in  the  name  of  the  defendant  In  replevin, 
as  assignee.  Harmon  v.  Collins,  2  Penn.  Del.  36,  45  Atl.  541. 

Execution  of  the  Writ. — It  is  the  Imperative  duty  of  the  sheriff  to 
seize  the  goods  and  deliver  them  to  the  plaintiff,  without  reference  tc 
the  wishes  of  the  defendant.  Yott  v.  The  Peoi)ie,  91  Ills.  11.  His  llrst 
duty  is  to  seize  the  goods,  and  If  he  fail  in  this  duty  and  the  property 
is  lost  by  reason  of  his  default,  the  officer  and  the  sureties  in  his  bond 
are  responsible.  People  v.  Wiltshire.  9  Ills.  Ap.  375.  Delay  occasioned 
by  looking  for  the  defendant.  Is  no  excuse.  Id.:  nor  irregularities  in 
the  foreclosure  of  a  chattel  mortgage  under  which  the  plaintiff  claims, 
Id.  The  defendant  Is  not  bound  to  deliver  the  property  to  the  officer, 
nor  to  assist  him  In  executing  his  writ,  and  he  is  not  in  conlcmiJl  lor 


430  THE    LAW    OF    REPLEVIN. 

•merely  refusing  to  deliver  the  goods,  Horr  v.  The  People,  95  Ills.  169. 
It  is  the  duty  of  the  plaintiff  to  point  out  to  the  officer  the  goods 
which  he  demands,  and  to  know  that  he  takes  the  goods  described 
in  the  writ,  Dewey  v.  Hastings.  79  Mich.  263,  44  N.  W.  607.  Plain- 
tiff is  not  under  any  duty  to  accept  and  give  bond  for  a  part  of  the 
goods,  the  rest  not  being  found,  McBrian  v.  Morrison,  55  Mich.  352, 
21  N.  W.  368.  Where  the  statute  requires  a  replevy  bond  in  double  the 
value  of  the  goods,  to  be  ascertained  by  an  appraisement,  in  a  manner 
prescribed  by  the  statute,  the  sheriff  has  no  right  to  require  the  bond 
as  a  condition  precedent  to  executing  the  writ;  because,  until  appraise- 
ment, it  cannot  be  known  in  what  penalty  the  bond  is  required,  Ham- 
berger  v.  Seavey,  165  Mass.  505,  43  N.  E.  297;  Steur  v.  Maguire,  182 
Mass.  575,  66  N.  E.  706.  But  if  the  officer  executes  the  writ  and  de- 
livers the  goods  to  plaintiff,  without  securing  the  bond,  he  is  a  tres- 
passer ab  initio  and  the  defendant  may  bring  either  trespass  or 
trover  without  awaiting  the  result  of  the  replevin.  No  demand  is 
necessary.  Parker  v.  Young,  188  Mass.  600,  75  N.  E.  98.  If  the  goods 
are  found  in  the  possession  of  Any  person  other  than  the  defendant 
in  the  writ,  the  officer  cannot  be  required  to  execute  his  writ  with- 
out indemnity.  Sexton  v.  McDowd,  38  Mich.  148.  And  the  officer  may 
require  an  indemnity  wherever  there  is  reasonable  doubt  as  to  the 
ownership,  Hamberger  v.  Seavey,  supra.  The  officer  is  entitled  to 
hold  the  goods  a  reasonable  time  for  the  appraisement,  and  it  is  the 
duty  of  the  plaintiff  to  furnish  the  bond  promptly  when  the  appraise- 
ment is  made,  Hamberger  v.  Seavey,  supi'a;  the  officer  is  entitled  to 
occupy  defendant's  premises,  only  during  such  reasonable  time,  Steur 
V.  Maguire,  supra.  The  officer  is  bound  to  obey  his  writ,  even  though 
he  knows  and  sees  that  the  goods  named  are  not  repleviable,  Watson 
V.  Watson,  supra:  and  even  though  he  knows  the  recitations  of  the 
writ  to  be  false.  Id.  In  New  York  it  is  said  that  a  requisition  to  the 
sheriff  only  protects  him  in  seizing  the  goods  in  possession  of  the 
defendant  or  his  agent,  Lehman  v.  Mayer,  8  Ap.  Div.  311,  40  N.  Y. 
Sup.  933.  But  in  Alabama  it  was  held  that  it  is  the  duty  of  the 
sheriff  to  execute  the  writ  though  several  are  named  as  defendants 
and  only  one  has  possession  of  the  chattels,  Rich  v.  Lowenthal,  99  Ala. 
488,  13  So.  220.  The  plaintiff  is  responsible  for  the  acts  of  the  officer 
in  the  execution  of  the  writ;  if  the  officer  improperly  surrender  the 
goods  to  a  stranger  the  plaintiff  is  liable,  Adamson  v.  Sundby,  51 
Minn.  460,  53  N.  W.  761.  But  the  plaintiff  who  sues  for  machinery 
is  not  liable  for  pulling  down  a  shelter  erected  over  it,  if  his  conduct 
is  not  wanton,  but  merely  incidental  to  the  removal,  Hall  v.  Tillman, 
110  N.  C.  220,  14  S.  E.  745.  Where  the  sheriff  seizes  a  greater  quan- 
tity of  the  commodity  demanded  in  the  >writ,  than  is  therein  specified, 
the  plaintiff  may  still  prosecute  for  the  less  quantity,  for  which  he  has 
made  demand,  Horr  v.  Barker,  6  Calif.  489.  Appearance  is  a  waiver 
of  the  service  of  the  writ.  Miller  v.  Warden,  111  Pa.  St.  300,  2  Atl.  90. 
Defects  and  irregularities  in  the  execution  of  the  writ  are  cured  by 
defendants    giving   bond   to   retain    the   goods,   Carraway    v.   Wallace, 


THE  WRIT.  431 

Miss.  17  So.  930.  The  writ  cannot  be  quashed  after  defendant's 
appearance,  Kraemer  r.  Kraemer  Co.,  59  N.  J.  L.  9,  35  Atl.  791.  A 
deputy  sheriff  may  waive  service  in  the  name  of  his  principal,  Nipp  v. 
Bower,  9  Kans.  Ap.  854,  61   Pac.  44S. 

In  Kelley  r.  Schuyler,  20  R.  I.  432,  39  Atl.  893,  it  was  held  upon 
full  consideration  that  the  sheriff  who  breaks  the  outer  door  of  a 
dwelling  to  execute  a  writ  or  replevin  against  the  house-holder,  is 
a  trespasser;  and  if  the  officer  takes  other  goods  than  those  taken 
in  the  writ  he  is  liable  for  their  value.  The  court  examine  the  cases 
cited  in  section  287  of  this  work  and  express  the  opinion  that  they 
fail  to  sustain  the  text.  In  Bruce  v.  Ulery,  79  Mo.  322,  the  court 
say  the  text  is  fully  sustained  by  the  cases  cited  in  its  support.  In 
The  State  v.  Beckner,  132  Ind.  371,  31  N.  E.  950,  it  was  held  that  in 
the  absence  of  statute  the  officer  has  no  power  to  break  the  outer  door 
of  a  dwelling,  to  execute  a  writ  of  replevin,  even  though  the  house- 
holder be  not  defendant  in  the  v;rit. 

And  if  the  door  being  opened  to  him,  the  house-holder  on  discover- 
ing who  he  is,  attempts  to  close  it  and  he  enters  by  force,  he  is  a 
trespasser.  Id.  citing  State  v.  Armfield,  2  Hawks,  246,  11  Am.  Dec. 
762.  But  if  the  officer  has  made  the  levy  or  assumed  possession  of 
the  goods  under  a  writ  of  replevin,  he  may,  returning,  break  the  outer 
door  to  remove  the  goods.  State  r.  Beckner,  supra.  The  sheriff  may 
seize  the  property  before  delivering  any  copy  of  his  writ  or  order 
to  the  defendant,  State  v.  Wilson,  24  Kans.  50.  The  sheriff  of  one 
county  cannot  execute  a  writ  of  replevin  in  another,  Dederick  v. 
Brandt,  16  Ind.  Ap.  264,  44  N.  E.  1010.  Where  the  officer,  after 
commencing  the  service  of  the  process,  is  appointed  guardian  of  the  in- 
fant plaintiff,  therein  named,  he  cannot  legally  complete  the  serv- 
ice; an  attachment  thus  began  by  such  officer  will  be  deemed  in  law 
abandoned,  so  that  a  later  attachment  will  take  precedence  of  it, 
Clark  V.  Patterson,  58  Vt.  G77,  5  Atl.  564. 

Return  of  the  Writ. — The  return  of  the  writ  without  seizing  all  the 
goods,  is  premature;  the  court  may  allow  the  writ  to  be  withdrawn 
for  further  execution,  National  Bank  of  Commerce  v.  Feeney,  9  S.  D. 
550,  70  N.  W.  874.  It  is  the  duty  of  the  plaintiff  to  know  what  has 
been  done  upon  his  writ,  before  he  demands  a  plea,  Lamey  i;.  Remu- 
son,  2  N.  M.  245.  The  officer's  return  is  conclusive  upon  the  parties; 
it  Is  error  to  allow  the  defendant  to  contradict  it,  Rowell  v.  Klein, 
44  Ind.  290.  The  return  is  evidence  only  so  far  as  responsive  to  the 
writ,  Parker  v.  Palmer,  13  R.  I.  359.  "  Served  the  within  on  John 
Stabler;  Aultman,  Taylor  &  Co.  not  found  in  the  county,  by  deliver- 
ing a  true  copy  to  John  Stabler."  Held  a  sufficient  return.  Aultman 
Co.  V.  Stelnan,  8  Neb.  109.  The  return  of  the  officer  is  evidence,  and 
It  seems  Ine  only  comjietent  evidence,  as  to  which  of  two  like  bonds 
is  executed  In  the  particular  case,  McManus  v.  Donoliue.  175  Mays. 
305.   56   N.    E.   291. 

lie  Caption.— It    after    the    goods    are    taken    and    (Iclivtrtd    to    the 


432  THE    LAW    OF    REPLEVIN. 

plaintiff,  the  defendant  forcibly  retakes  them  he  is  guilty  of  a  con- 
tempt, and  should  be  punished  accordingly,  People  v.  Neill,  74  Ills. 
68.  And  the  offending  party  may  be  required  to  restore  the  goods, 
and  fined  and  imprisoned  if  he  disobey,  Knott  v.  The  People,  83  Ills. 
532, 


THE  RETURN. 


433 


CHAPTER  XVI. 


THE  RETURN. 


Section . 

The  return.   General  principles  481 

Tlie  same.  Return  must  be 
claimed    ..... 

Plaintiff  not  liable  for.  unless 
so  ordered  by  the  court . 

Duty  of  plaintiff  wlien  return 
is  adjudged      .... 

Return  ordered  only  where  it 
appears  just     .... 

Return  may  be  adjudged  to  one 
of  several  defendants 

Adjudged  only  wlien  the  de- 
fendant claims  it    . 

The  same.  Exceptions  to  the 
rule 

Formal  prayer  for  return  not 
essential 

The  same  in  justice  court . 

Judgment  for  value  rendered 
only  where  a  return  would  be 
proper       

When  a  defendant  plt-ads  proj)- 
erty  in  a  third  person 

Tlie  same 

Judgment  for  return  does  not 
settle  the  question  of  title 

Such  judgment  generally  fol- 
lows a  verdict  for  thedefeinl- 
ant 4{»." 


482 


483 


484 


486 

487 

488 

489 
490 


491 

492 
493 

494 


Illustrations  of  the 


496 

497 
498 


Section. 
The  rights  of  the  parties  at  the 

time  the  return  is  asked  will 

govern 
The  same. 

rule 

The  same 

Never  ordered  unless  it  appears 

that  the  plaintiff  obtained  de- 
liverance upon  the  writ  . 
Return  of  the  young  of  animals 

born  after  the  suit  begun 
Where   defendant  avoids  trial 

upon  the  merits 

The  sjime 

The  general  rule  stated 

The  same     ..... 

Liquors  .sold  to  enable  vendee 

to  violate  the  laws  . 
When  the  parties  are  joint  ten- 
ants   

Where  the  property  is  lost  or 

destroyed  .... 

When  the   question    of   return 

should  be  determined 
Return    or   delivery    in    States 

adopting  the  code  . 
The  writ    of   return    nuist    dt;- 

scribe  the  gocjds 


499 

500 

501 
503 
503 
504 

505 

500 

507 

508 

509 

510 


S  481.     The    return.     General    principles.     A.s    li;is    Iumh 
statt'd,  both  parties  in  replevin  iire  called  actons  (ir  phiiiitilV.s.' 


Ante,    i    21. 
28 


434  THE    LAW    OF    REPLEVIN. 

"When  the  action  was  for  a  distress,  the  defendant,  by  avowing 
and  demanding  a  return,  was  looked  ujion  as  suing  for  the  right 
to  make  the  distress.  In  other  cases,  where  he  chiin)ed  the  prop- 
erty and  demanded  a  return,  his  chiim  was  regarded  as  a  kind  of 
cross-action  for  the  recovery  of  the  property.  Ujwn  tlie  decision 
of  this  question  depended  the  possession  of  the  property.  It  is 
thei'efore  one  of  the  most  important  arising  in  tliis  proceeding. 

§  482.  The  same.  Return  must  be  claimed.  The  issue 
as  to  whether  a  return  shall  be  made  is  not  always  presented  in 
the  pleading;  but  where  it  is,  the  action  is  not  determined  until 
the  final  judgment  of  the  court  upon  it.'  And  to  enable  the 
court  to  determine  the  respective  rights  of  parties,  the  plaintiff 
is  not  allowed  to  dismiss  his  suit,  so  as  to  prevent  a  hearing  or  a 
decision  as  to  the  propriety  of  a  return,  or  as  to  the  value  of  tlie 
property,  or  as  to  an  assessment  of  damages.'  "When  the  plain- 
tiff does  so  dismiss  his  suit,  the  defendant  may  retain  it  or  have 
reinstated  for  the  purpose  of  having  these  issues  determined.  In 
such  case  the  plaintitt'  is  regarded  as  in  default.* 

§  483.  Plaintiff  not  liable  for,  unless  so  ordered  by  the 
court.  Whatever  judgment  the  court  may  render,  whether 
against  the  plaintiff,  for  costs,  or  costs  and  damages,  lie  is  under 
no  obligation  to  return  the  goods  delivered  to  him  upon  the  writ, 
unless  such  be  the  order  of  the  court.^     But  it  does  not  follow 

=  Broom  v.  Fox,  2  Yeates,  (Pa.)  530;  Branch  r.  Branch,  5  Fla.  447; 
City  of  Bath  v.  Miller,  53  Me.  316. 

^Berghoff  v.  Heckwoll,  26  Mo.  512;  Raney,  Admr.,  v.  Thomas,  45 
Mo.  112;  Collins  v.  Hough,  26  Mo.  150;  Broom  v.  Fox,  2  Yeates.  (Pa.) 
530;  Waldman  v.  Broder.  10  Cal.  379;  Studdert  v.  Hassell,  6  Humph. 
(Tenn.)  137;  Mikesill  v.  Chaney,  6  Port.  (Ind.)  52;  Noble  v.  Epperly, 
6  Port.   (Ind.)   415;   Hall  v.  Smith,  10  Iowa,  45. 

*Wilkins  v.  Treynor,  14  Iowa,  393;  Kimmel  v.  Kint,  2  Watts,  (Pa.) 
432.  But,  see  Wiseman  v.  Lynn,  39  Ind.  254,  where  it  is  said,  if  the 
suit  be  dismissed  before  hearing,  there  can  be  no  judgment  for  return. 
The  bond,  however,  would  be  liable.  See,  also,  Sanderson  v.  Lace, 
1  Chand.  (Wis.)  231.  In  Alabama,  when  the  plaintiff  consented  to  a 
nonsuit,  the  court  said  the  remedy  was  upon  the  bond,  it  having  no 
data  from  which  to  render  judgment  beyond  the  formal  one  for  costs. 
Savage  v.  Gunter,  32  Ala.  469.  If  the  suit  be  dismissed,  the  order 
for  a  return  must  be  made  at  the  same  term;  otherwise  the  court 
cannot,  at  a  subsequent  term,  change  its  records  and  order  a  return 
to  the  defendant.     Lill  v.  Stookey,  72  111.  495. 

'Clark  V.  Norton,  6  Minn.  415;  Ladd  v.  Prentice,  14  Conn.  117;  Way 
V.  Barnard,  36  Vt.  366. 


THE  RETURN.  435 

that  the  plaintiff  may  not  in  some  cases  find  it  to  his  advantage 
to  return  them  witliout  the  order  of  the  court ;  as,  for  instance, 
the  order  for  a  return  may  not  have  been  made,  although  the 
plaintiff  has  failed  in  his  action,  /.  e.,  has  not  prosecuted  it  with 
success,  thus  rendering  him  liable  to  an  action  upon  the  bond.  In 
such  case,  unless  the  plaintiff  is  able  to  make  good  his  defense  to 
suit  upon  the  bond,  it  may  sometimes  be  advisable  to  restore  the 
property,  even  though  he  at  once  replevy  it  again,  as  the  restora- 
tion of  the  property,  and  its  acceptance  by  the  defendant,  would 
go  in  mitigation  of  damages  in  suit  upon  the  bond. 

§  484.  Duty  of  plaintiff  when  return  is  adjudged.  If  the 
court  renders  judgment  for  a  return,  the  duty  is  imposed  upon 
the  plaintiff  to  at  once  return  the  goods.  This  duty  is  not  the 
passive  one  of  permitting  the  defendant  to  take  his  goods,  or  to 
surrender  them  to  the  sheriff  upon  the  writ  of  retomo,  but  he  is 
required  to  redeliver  them  to  the  defendant,*  and  in  as  good  order 
as  when  taken." 

§  485.  Return  ordered  only  where  it  appears  just.  The 
power  to  order  a  return  is  exercised  upon  the  idea  that  a  wrong- 
fvd  taking  of  the  goods  froTu  the  defendant,  even  though  under 
the  authority  of  legal  process,  does  not  deprive  the  owner  of  his 
title  or  right  of  possession.*  This  power  is  always  exercised  by 
the  court  in  the  furtherance  of  justice,  and  to  protect  the  riglits 
of  the  parties;''  otherwi.se,  property  might  be  taken,  without  any 
process  to  restore  it,'"  or  the  plaintiff  might  be  required  to  deliver 
his  goods  to  the  defendant,  when  the  defendant  really  had  no  title 

*  Parker  v.  Simmonds,  8  Met.  207. 

'Berry  v.  Hoeffner,  56  Me.  171;  Washington  Ice  Co.  v.  Webster.  62 
Me.  363;  Allen  v.  Fox,  51  N.  Y.  562.  The  writ  of  return  cannot  issue 
except  to  the  sheriff  of  the  county  where  judgment  is  rendered. 
Rathbun  j-.  Ranney,  14  Mich.  382.  The  plaintiff  cannot  comi)lain  of 
the  omi-ssion  to  award  a  return.  If  the  jury  find  for  the  defendant, 
and  a  return  is  erroneously  omitted,  he  is  the  only  party  injured, 
and  he  alone  can  complain.     Branch  v.  Wiseman,  51   Ind.  1. 

•See  dissenting  opinion  of  Siti.iik,  J.,  in  Smith  v.  McGregor,  10 
Ohio  St.  470;    Kerley  v.   Hume,  3  T.   B.   Mon.    (Ky.)    181. 

•Fowler  v.  Hoffman,  31  Mich.  221;  Bartiett  t'.  Kidder,  14  Gray,  450; 
Salkold  I'.  Skelton,  Cro.  Jac.  519;  Plant  v.  Crane,  7  Port.  (Ind.)  486; 
Saffell  V.  Wash,  4  B.  Mon.  (Ky.)  '.♦2;  City  of  Bath  r.  Miller.  .^.3  Me.  317; 
Wheeler  r.   Train.   4    Pick.    168. 

"MikeHlll  r.  Chancy,  6  Port.  (Ind.)  52;  Lowe  v.  Drigham,  3  Alien. 
(MaHHj    430. 


436  THE    LAW    OF    REPLEVIN. 

or  right  to  possess  them,  when  such  delivery  would,  iu  fact, 
amount  to  a  loss  of  his  goods.  Another  suit  in  replevin  might  be 
permitted  on  antecedent  title,  but  a  right  to  another  suit  is  but  a 
meagre  award  to  a  suitor  in  the  right.  Even  after  a  general 
verdict  for  defendant,  or  a  judgment  that  the  writ  be  abated,  the 
order  for  return  does  not  follow  as  a  matter  of  course.  Wheiher 
it  be  rendered  or  not  involves  an  inquiry  into  and  a  decision  upon 
the  merits.  It  is  rendered  by  the  court  only  as  the  rights  of  the 
parties  require."  Where  the  verdict  is  for  defendant  for  a  sum 
of  money,  such  a  finding  does  not  entitle  him  to  a  judgment  for 
return.  All  that  can  be  inferred  is,  that  the  plaintiff  is  entitled 
to  the  property  on  paying  the  sum  awarded.'''  AVhen  it  appears 
that  the  defendant  never  had  a  right  to  the  possession,  a  return 
will  not  be  awarded.  It  would  be  absurd  that  one  should  acquire 
rights  by  successfully  defending  a  suit,  upon  the  ground  that  he 
has  no  interest  in  the  matter  in  dispute." 

§  486.  Return  may  be  adjudged  to  one  of  several  defen- 
dants. Where  there  are  several  defendants,  the  court  may  ad- 
judge a  return  to  one  of  them,  and  refuse  it  to  the  others,  or  the 
judgment  may  be  in  favor  of  all ;  '*  or  the  court  may  award  part 
of  the  proi>orty  to  one  of  the  defendants,  and  part  to  another,  or 
to  the  plaintiff,  as  the  rights  of  the  parties  shall  appear. 

§  487.  Adjudged  only  when  the  defendant  claims  it. 
Without  repeating  what  has  been  said  elsewhere,  and  without 
discussing  the  question  of  pleadings,  the  reader  will  understand 
that  a  return  cannot  be  awarded  unless  the  pleadings  are  framed 

"Tuck  V.  Moses,  58  Me.  474;  Whitwell  v.  Wells,  24  Pick.  33;  Lowe  v. 
Brigham,  3  Allen,  430;  Goodheart  v.  Bowen,  2  Bradw.  (111.)  578; 
Bourk  V.  Riggs,  38  111.  320;  Smith  v.  Aurand,  10  S.  &  R.  (Pa.)  92; 
Saffell  V.  Wash,  4  B.  Mon.  92. 

'-Hunt  V.  Bennett,  4  G.  Greene,  (Iowa,)  512.  See  Hanford  v.  Obrecht, 
38  111.  49?;  Hanford  v.  Obrecht,  49  111.  146.  Judgment  may  be  simply 
for  costs.  Wheeler  v.  Train,  4  Pick.  168;  Ingraham  v.  Martin,  15  Me. 
373;   Miller  v.  Moses,  56  Me.  128. 

"Hall  V.  White,  106  Mass.  600;  Whitwell  v.  Wells,  24  Pick.  33; 
Snelgar  v.  Hewston,  Cro.  Jaa  611.  Goods  cannot  be  returned  to  a 
person  from  whom  they  were  never  taken.  Richardson  v.  Reed,  4 
Gray,  441.  "  When  plaintiff  is  won-suited  because  the  defendant 
never  had  possession,  the  defendant  is  not  entitled  to  return  a  judg- 
ment for  value."     Gallagher  v.   Bishop,  15   Wis.   277. 

'•  Woodburn  v.  Chamberlain,  17  Barb.  446;  Wells  v.  Johnson,  16  Barb. 
375. 


THE  RETURN.  437 

for  that  purpose.  The  defendant  must  set  up  some  affirmative 
right  upon  his  part  to  have  the  goods  delivered  to  him,  or  a  re- 
turn will  not  be  adjudged.  Thus,  if  the  defendant  sets  up  as  his 
only  defense  that  he  did  not  take  the  goods,  this  virtually  admits 
the  plaintiff's  right  to  them,  and  upon  a  verdict  for  defendant  in 
such  case  a  return  will  not  be  awarded.'^  The  prayer  for  a  re- 
turn is  in  the  nature  of  a  cross-action,  in  which  the  defendant  is 
suing  for  a  return  of  the  goods  and  for  damages."'  The  same 
principles  govern  the  plea  of  non  detinet,  which  puts  in  issue  only 
the  detention  ;  upon  such  pli'u  no  return  will  l)e  awarded." 

§  488.  The  same.  Exceptions  to  the  rule.  In  Indiana  it 
is  held  that  an  officer  who  files  general  denial  only,  may  prove 
property  in  himself  as  an  officer  by  showing  that  he  holds  the 
property  under  the  levy  of  process,  and  that  the  iiroperty  is 
owned  by  the  defendant  therein.  This  rule  will  probably  be 
followed  in  States  having  a  similar  code  of  practice.'''  I>y  statu- 
tory provisions  in  some  of  the  States  the  plea  of  7iou  ccpit  or  yion 
detinet  puts  in  issue  not  onl}'  the  taking  and  detention,  but  the 
right  of  property.  In  such  case  a  verdict  fur  the  defendant  ought 
to  entitle  him  to  a  judgment  for  return." 

§  489.  Formal  prayer  for  return  not  essential.  A  simple 
claim  for  a  return  in  the  answer  is  not  sufficient.     It  should  state 

"Chambers  v.  Waters,  7  Cal.  390;  Trotter  v.  Taylor,  5  Blackf.  431; 
Wright  V.  Mathews,  2  Blackf.  187;  Douglass  v.  Garrett,  5  Wis.  88; 
Moulton  V.  Bird,  31  Me.  297;  Ely  v.  Ehle,  3  Comst.  (N.  Y.)  510;  Simpson 
V.  M'Farland,  18  Pick,  427;  Powell  v.  Hinsdale,  5  Mass,  343;  Seymour  v. 
Billings,  12  Wend.  286;  Pratt  v.  Tucker,  67  111.  346;  Bourk  v.  Riggs. 
38  111.  321;  Mills  v.  Gleason,  21  Cal.  274;  Anstice  v.  Holmes,  3 
Denio,  244;  Harrison  v.  M'Intosh,  1  Johns.  380;  Rogers  v.  Arnold,  12 
Wend.  30;  Prosser  v.  Woodward,  21  Wend.  205;  Colts  v.  Waples.  1 
Minn.  134;  Finley  r.  Quirk,  9  Minn.  194;  Cooper  v.  Brown,  7  Dana. 
(Ky.)  333. 

"Gould  V.  Scannell,  31  Cal.  430;  Bonner  v.  Coleman.  3  B.  Mou.  (Ky.) 
464;  Smith  v.  Snyder,  15  Wend.  324;  Berghoff  v.  Heckwolf,  26  Mo.  512; 
Brown  v.  Stanford,.  22  Ark.  78.  But,  see  Matlock  v.  Straughn.  21  Ind. 
128;   Kerley  v.  Hume,  3  T.  B.  Mon.   (Ky.)   181. 

"See  pleading  non  ccjAt  and  Jio?i  detinet.  Bemus  i».  Bcoknian.  .'{ 
Wend.  067;  Smith  v.  Snyder.  15  Wend.  324;  Pierce  r.  Van  Dyke.  C  Hill. 
613;  VoHO  V.  Hart,  12  111.  378;  Conner  v.  ComBtock,  17  Ind.  92;  Hanfonl 
V.  Obrecht,  38  III.  493. 

"Branch   v.   WiHcman.  51    Ind.    1. 

"Ford  t'.  Ford,  .'{  WIh.  399;  Sparks  r.  Hciltam',  i:.  Ind  iW.;  Noble  v. 
Epperly,    6    Ind     414. 


438  THE    LAW    OF    REPLEVIN. 

facts  as  to  tlie  ownership,  or  right  of  possession,  which  justify  an 
award  of  return.-"  But  a  formal  })rayer  for  return  is  not  essential. 
The  averment  of  title  by  the  dofenilant,  or  a  plea  setting  up 
ownership  in  a  third  person  averring  a  right  of  possession,  with  a 
formal  traverse  of  the  plaintiff's  rights,  will  be  sufficient."'  When 
the  pleas  were  :  1st,  non  cepit  :  2(1,  iion  detinet ;  3d,  goods  not 
the  property  of  the  plaintiff' ;  4th,  property  in  the  defendant ;  5th, 
l^roperty  in  a  third  person  ;  and  where  the  verdict  was,  "  We  find 
the  issues  for  the  defendant,"  this  was  equivalent  to  finding  all 
the  issues  for  the  defendant,  and  a  return  was  jn-operly  awarded.^'' 
When  the  pleas  were*  non  cej^it,  plea  of  property  in  defendant, 
and  in  a  third  person  ;  the  verdict  was,  "  Xot  guilty ; "  this  was 
regarded  as  not  responsive  to  any  plea  except  7wn  cejyit ;  held,  a 
return  could  not  be  awarded.-^ 

§  490.  The  same.  In  justice  court.  In  an  appeal  from  a 
justice  court  where  the  pleadings  were  oral,  and  where  the  jury 
found  this  verdict:  "We,  the  jury,  find  the  defendant  guilty,"  it 
was  held  eciuivalent  to  a  finding  of  propert}'  in  the  i)laintiff.-' 

§  491.  Judgment  for  value  rendered  only  where  a  return 
would  be  proper.  When  tiie  property  itself  cannot  be  had, 
judgment  for  tlie  value  of  the  property  is  sometimes  awarded. 
In  such  case,  the  judgment  for  value  is  never  rendered  to  a  de- 
fendant unless  he  show  himself  entitled  to  a  return.  Unless  by 
his  pleadings  he  has  claimed  the  property,  and  asked  a  return, 
judgment  for  value  would  be  erroneous." 

§  492.  When  the  defendant  pleads  property  in  a  third 
person.  The  defendant  in  this  action  may,  and  freijuently  does, 
plead  property  in  himself,  and  also  in  a  third  person,  traversing 
the  plaintiff's  right.  If  the  goods,  in  such  case,  belong  to  a  third 
per.son,  the  plaintiff  being  unable  to  show  title  in  himself,  must 
fail.  When  the  defendant  succeeds  upon  the  plea  of  property  in 
himself,  he  is  entitled  to  have  the  property  restored  to  him  ;  the 

="  Lewis  V.  Buck,  7  Minn.  105. 

='King  V.  Ramsay.  13  111.  623;  Underwood  v.  White,  45  111.  438; 
Chandler  v.  Lincoln,  52  111.  76. 

-Underwood  v.  White,   45   111.   438. 

=^Hanford   v.   Obrecht,   38    111.    493. 

"*  Jarrard    v.    Harper,    42    111.    457. 

^  Gould  V.  Scannell,  13  Cal.  430.  See  Bemus  v.  Beekman,  3  Wend. 
667;  Bourk  v.  Riggs,  38  111.  320;  Vose  v.  Hart,  12  111.  378;  Johnson  v. 
Howe,   2  Gilm.   342;    Mills  v.   Gleason,   21  Cal.   280. 


THE  RETURN.  439 

judgment  is  pro  retorno  habendo."'^  But  when  he  succeeds  upon 
his  plea  of  property  in  a  third  person,  it  is  sometimes  a  question 
whether  he  has  a  right  to  have  the  property  returned,  witliout  in 
some  way  connecting  himself  with  the  rights  of  that  person. 
There  are  cases  upon  both  sides  of  this  question.  A  very  large 
number  hold  that  the  defendant  who  is  successful  upon  such  a 
plea  is  entitled  to  a  return  of  the  property  without  in  any  way 
connecting  himself  with  the  title  of  such  third  person,'"  the  theory 
being  that  the  defendant,  from  whom  the  goods  were  wrongfully 
taken,  ought,  in  justice,  to  be  put  in  as  good  condition  as  he  was 
before  the  taking.'" 

§  493.  The  same.  Hut  a  large  number  of  cases  hold  that 
return  will  not  be  awarded  to  the  defendant  upon  a  plea  of  prop- 
erty in  a  stranger,  unless  he  show  he  is  in  some  way  responsil)le  to 
such  stranger,  or  in  some  way  connect  himself  with  the  title  of 
the  property.^  A  proper  deduction  from  these  conflicting  cases 
seem  to  be,  that  when  the  defendant  is  a  mere  trespasser  he  can- 
not set  up  title  in  a  third  person  to  defeat  the  right  of  a  plaintiff. 
The   title  in  such   third  person  which  is  necessary  to  defeat  a 

"Landers  v.  George,  40  Ind.  160;  Easton  v.  Worthington,  5  S.  &  R. 
(Pa.)  132;  Walpole  v.  Smith,  4  Blackf.  305;  Constantine  v.  Foster, 
57  111.  38;  King  v.  Ramsay.  13  111.  619;  Underwood  v.  White,  45  111. 
438;    Quincy   v.   Hall,   1    Pick.   357;    Waldman   v.   Broder,    10   Cal.   379. 

"  Ingraham  v.  Hammond,  1  Hill,  (N.  Y.)  353,  citing  many  cases; 
Prosser  v.  Woodward,  21  Wend.  209;  Morss  v.  Stone,  5  Barb.  516; 
Anderson  v.  Talcott,  1  Gilm.  371;  Quincy  v.  Hall,  1  Pick.  357;  Hunt 
r.  Chambers,  1  Zab.  627;  Johnson  v.  Carnley,  6  Seld.  (N.  Y.)  576; 
Rickner  v.  Dixon,  2  G.  Greene,  (Iowa),  592;  Hopkins  v.  Shrole,  1 
Bos.  &  P.  382;  Butcher  v.  Porter,  1  Salk.  94;  Anon.  6  Mod.  103;  Allen 
V.  Darby.  1  Show,  97;  Hoeffner  v.  Stratton.  57  Me.  360.  See  Tuley  v. 
Mauzey,  4  B.  Mon.  (Ky.)  5;  [Pitts  Works  v.  Young.  6  S.  D.  557.  62  N. 
W.  432;  La  Mott  v.  Wisner,  51  Md.  543;  Hoeffner  v.  Stratton,  57  Me. 
360.] 

"Butcher  r.  Porter,  Garth.  242;  Same  v.  Sanip,  Show.  400;  Salkold 
V.   SkeJton.  Cro.  Jac.  519;    Harrison   v.   M'lntosh.   1    .Tolins.   384. 

"Dozier  v.  Joyce,  8  Port.  (Ala.)  303;  Dun.  an  v.  Spnar,  11  Wend. 
54;  Brown  v.  Webster.  4  N.  H.  500;  WilkiTson  v.  McDougal.  48  Ala. 
518;  Rogers  r.  Arnold,  12  Wond.  3(i.  [Nichols  v.  I'otts.  35  Misc.  273.  71 
N.  Y.  Sup.  765.  Whore  defendant  pleads  title  In  a  third  person,  re- 
turn should  not  bo  awarded;  but  the  court  of  Its  own  motion  should 
order  such  third  person  to  be  made  party;  note  that  the  third  person 
in  this  case  was  tho  trustee  for  creditors,  Wllklns  r.  \a'v,  42  S.  C. 
31    19  8.  E.  lOlC] 


440  THE    LAW    OF    REPLEVIN. 

plaintiff  showing  riglit  to  possession  must  be  soniethinjr  tliat  goes 
to  destroy  the  phiintiff's  right  to  recover,  or  sneli  as  would  defeat 
an  action  of  trespass  if  brought  in  place  of  replevin  ;  ^^  and  this 
unquestionably  was  the  law  at  a  vei-y  early  time." 

§  494.  Judgment  for  return  does  not  settle  the  question 
of  title.  The  action  of  replevin  is  frequently  brought  to  try  the 
(piestion  of  the  right  to  possession  only,  and  in  such  cases  a  ver- 
dict and  judgment  are  not  evidence  of  title  in  the  successful 
party.  But  when  the  title  is  in  issue,  and  that  question  heard 
and  determined,  the  judgment,  of  course,  is  conclusive  on  the 
jiarties,  and  all  claiming  under  them.^''  The  judgment  for  a  re- 
turn, therefore,  does  not  settle  the  question  of  ownership,  unless 
that  question  was  presented  and  tried.  "When,  therefore,  the 
action  is  dismissed,  or  where,  for  any  cause,  except  a  decision 
upon  the  merits,  a  judgment  for  return  is  rendered,  the  i)laintiff 
may  return  the  goods,  and  may  replevy  again  on  his  original 
title."  The  statute  of  ]Marlbridge,  which  prevented  such  replev- 
ins, except  upon  a  writ  of  second  deliverance,  is  local  to  Great 
Britain,  and  does  not  apjtly  in  this  country.^* 

§  495.  Such  judgment  generally  follows  a  verdict  for 
the  defendant.  The  principles  of  the  common  law  incline  to 
favor  a  return  in  all  cases  Avhen  the  plaintiff  has  obtained  delivery 
of  the  goods  upon  his  writ,  and  for  any  cause  failed  to  prosecute 
his  suit  to  a  successful  issue  ;  and  these  principles  obtain  generally 
in  all  the  States.'^     This  was  on  the  presumption  that  when  the 

'"See  Van  Namee  v.  Bradley,  69  111.  300,  a  leading  case  on  this  sub- 
ject. 

"Butcher  r.  Porter,  1  Salk.  93;  Bro.  Abr.  title  Retorno  Av., 
etc.,  28;  Mitchell  v.  Alestree,  Vent.  249;   Rast.  Ent.  554. 

^Seldner  v.  Smith,  40  Md.   603;   Wallace  v.  Clark,  7  Blackf.  299. 

"Walbridge  v.  Shaw,  7  Cush.  560;  Warner  v.  Matthews,  18  111.  83; 
Child  V.  Child,  13  Wis.  20;  [Bettinson  v.  Lowery,  86  Me.  218,  29  Atl. 
1003.] 

"Daggett  V.   Robins,    2    Blackf.    417. 

'^When  the  defendant  claims  property,  and  plaintiff  takes  a  non- 
suit, return  will  be  awarded.  Stat.  Westm.  2  C.  2;  Tirap.  r.  Dockham, 
32  Wis.  153.  When  a  party  brings  replevin  in  a  State  court  to  re- 
cover property  seized  from  him  on  execution  from  a  federal  court, 
the  replevin  should  be  dismissed,  and  an  order  given  for  a  return  of 
the  goods.  Booth  v.  Ableman,  16  Wis.  460;  Freeman  v.  Howe,  24  How. 
(U.  S.)  450;  Taylor  v.  Carryl,  20  How.  584;  Peck  v.  Jenness,  7  How.  (U. 
S.)  612-621;   Lowe  v.  Brigham,  3  Allen.  429. 


THE  RETURN.  441 

jilaintifif  failed  in  his  suit,  the  defendant  was  entitled  to  have  the 
distress.  The  rule  in  this  country  nia}''  be  stated,  that  when  the 
plaintiff  fails  in  his  suit,  the  presuiiiption  is  tliat  the  goods  be- 
long to  the  defendant,  and  ought  to  be  returned  to  hini.  But  the 
plaintift"  may  show  cause,  (if  he  is  able,)  why  the  return  should 
not  be  made  ;  and  unless  such  cause  be  shown,  the  order  for  re- 
turn usually  follows,  as  a  matter  of  course,  the  burden  of  proof 
being  upon  the  plaintiff. "*  Even  the  insoh'ency  of  the  defendant, 
occurring  after  suit  brought,  does  not  prevent  him  from  having 
an  order  for  a  return.  The  fact  that  the  title  he  once  had  has 
passed  to  his  assignee  cannot  be  set  up  by  any  other  person  to 
defeat  his  rights.^'  In  Ohio,  formerly,  the  defendant  was  never 
entitled  to  a  return  ;  but  if  successful,  was  entitled  to  judgment 
for  the  value.  The  writ  of  return  was  unknown  to  the  laws  in 
that  State,  the  bond  being  supposed  to  represent  the  property, 
whicli  was  regai-dtMl  as  transferred  by  the  writ.^** 

§  49().  The  rights  of  the  parties  at  the  time  the  return  is 
asked,  will  govern.  Keplevin  differs  somewhat  from  other 
actions,  in  this,  that  the  court  will  inquire  into  the  conditions  of 
the  title  to  the  property,  after  the  suit  was  begun,  down  to  tiie 
time  the  judgment  for  possession  is  asked.  This  does  not  change 
the  rule  that  the  facts  existing  at  the  time  the  suit  was  l)egun 
govern  the  rights  of  the  parties  at  the  trial  ;•'"  but  when  the 
property  remains  to  be  disposed  of,  the  court  will  incjuire  into  the 
state  of  facts  existing  at  the  time  the  order  for  a  return  is  asked. 

"Barry  v.  O'Brien,  103  Mass.  521;  Anderson  v.  O'Laughlin,  1  Blake, 
(Mont.)  81;  Dahler  v.  Steele.  1  Blake,  (Mont.)  290;  Salkold  r.  Skelton. 
Cro.  Jac.  519;  Presgrave  v.  Saunders,  2  Ld.  Raym.  984;  Clark  r.  Adair, 
3  Har.  (Del.)  IIG;  Vernon  i'.  Wyman,  1  H.  Bla.  24;  Mikesill  v.  Chaney, 
r,  Port.  (Ind.)  52;  Simpson  v.  McFarland,  18  Pick.  431;  Mason  v. 
Richards,  12  Iowa,  73;  Chadwick  v.  Miller,  6  Iowa.  38;  Jansen  r.  Effpy. 
10  Iowa.  227;  Quincy  v.  Hall.  1  Pick.  357;  Timp  v.  Dockham.  32  Wis. 
154;  Dawson  v.  Wetherbee,  2  Allen.  4G2;  Wheeler  v.  Train,  4  Pitk.  1C8; 
Allen  V.  Darby.  1  Show.  97;  Smith  v.  Aurand.  10  S.  &  R.  (Pa.)  02; 
PhillipH  t'.  Harriss.  3  J.  J.  Marsli.  122;  1  Ch.  Plea.  1G2;  Fleet  v.  l^ck 
wood,  17  Conn.  233. 

"  Hallett  V.   P'owler.   10   AiU-n.   37;    Hallett   v.   FowltT.   S    Ailfn,   93. 

"Smith  V.  McGreKor.  10  Ohio  St.  470;  Williams  r.  West.  2  Ohio 
St.  87.  The  statute,  however,  has  c-hangcd  this.  Ah  Io  the  rule  in 
Pennsylvania,  see  Gibbs  r.  Hartb-tt,  2  W.  &  S.  34.  And  In  Alabama. 
SCO  Savago  v.  Ounter.  32  Ala.  4<;y. 

■Johnson  v.  Neale,  G  Allen,  (MasH.)  229. 


442  THE    LAW    OF    REPLEVIN. 

If  it  appears  that  a  oliange  in  ownership  or  right  of  possession  has 
occurred  since  the  bef^jnning  of  tlie  suit,  as  by  the  expiration  of  a 
lease,  or  tlie  termination  of  some  limited  intt'rest,  so  that  the 
property  or  right  of  possession  vests  in  the  defendant,  a  return 
will  not  be  awarded,  notwithstanding  the  title,  as  it  stood  at  the 
eoniniencenient  of  the  suit,  might  have  been  otherwise.*"  xVs  to 
wliether  a  return  will  be  ordered  where  the  plaintiff  fails  to  prove 
a  demand  for  the  goods  before  bringing  suit,  and  for  that  reason 
judgment  is  against  him,  is  discussed  under  the  head  of  Demand- 
to  which  the  reader  is  referred.*' 

§  497.  The  same.  Illustration  of  the  rule.  Where  the 
defendant  was  successful,  and  niowd  for  a  return  of  the  property, 
the  plaintiff  objected,  upon  the  ground  that  since  the  commence- 
ment of  the  suit  the  defendant's  title  had  expired,  it  appeared 
that  the  facts  Avhich  the  plaintiff  relied  upon  to  sustain  his  objec- 
tion Avere  known  to  him  at  the  time  of  tlie  trial  of  the  replevin 
.suit,  the  court  said  it  was  too  late  to  interpose  them  for  the  purpose 
of  defeating  a  return." 

§  498.  The  same.  The  technical  correctness  of  this  ruling 
will  not  be  questioned.  The  rule  is  very  clear  that  if  at  the  time 
the  judgment  for  return  is  asked,  the  property  has  become  vested 
in  the  plaintiff,  even  though  the  defendant  had  a  right  to  the 
possession  when  the  suit  was  begun,  and  though  he  have  a  verdict 
and  judgment  in  his  favor  for  costs,  he  cannot  have  a  return," 
"When  plaintiff  had  leased  the  property,  and  the  lease  had  not 
expired  when  the  suit  was  begun,  but  had  expired  at  the  time  of 
the  trial,  the  successful  defendant  was  entitled  to  costs,  but  not  to 
a  return,  as  the  title  at  the  time  the  return  was  asked  was  in  the 
plaintiff.** 

§  499.  Never  ordered  unless  it  appears  that  the  plaintiff 
obtained  deliverance  upon  the  writ.  A  return  can  never  be 
adjudged  unless  it  appear  that  the  plaintiff  has  obtained  deliverance 

'"  Ingraham  v.  Martin,  15  Me.  373;  Davis  v.  Harding,  3  Allen,  303; 
Martin  v.  Bayley,  1  Allen,  382;  Whitwell  v.  Wells,  24  Pick.  33;  Walpole 
V.  Smith,  4  Blackf.  306;  Dawson  v.  Wetherbee,  2  Allen,  461;  Simpson 
V.  M'Farland,  18  Pick.  430;   Collins  v.  Evans,  15  Pick.  63. 

"  See  §  372,  et  seq. 

"McNeal  v.  Leonard,  3  Allen,    (Mass.)    268. 

*' Simpson  v.  McFarland,  18  Pick.  431;  O'Connor  v.  Blake,  29  Cal. 
313;    Wheeler    v.    Train,    4    Pick.    168. 

"Collins  V.  Evans,  15  Pick.  65;  Allen  v.  Darby,  1  Show.  99. 


THE  RETURN.  443 

of  the  property  by  virtue  of  his  writ.  In  States  where  the  de- 
fendant is  permitted  by  statute  to  retain  possession  of  the  goods 
upon  giving  bond,  a  return  does  not  follow  as  a  matter  of  course 
upon  a  finding  of  the  issues  in  his  favor  as  to  ownership  or  posses- 
sion ;  such  a  verdict  is  no  evidence  that  the  goods  were  delivered 
to  the  plaintiff.  The  presumption  would  be  that  they  remained 
with  the  defendant ;  judgment  upon  these  issues,  therefore,  should 
not  include  a  return  until  it  be  shown  that  the  plaintiff  obtained 
deliverance  of  the  goods  upon  his  writ.**  So,  when  the  judgment 
was  for  a  return  of  property  described  in  the  writ,  and  it  ap- 
peared from  the  oflScer's  return  that  all  the  property  was  not 
taken  and  delivered  to  the  plaintiff  upon  the  writ,  the  court 
reversed  the  judgment,  saying  plaintiff  could  not  be  required  to 
return  more  than  came  into  his  possession  upon  the  writ,  and  its 
increase.** 

§  500.  Return  of  the  young  of  animals  born  after  suit 
begun.  Where  the  property  in  disi)ute  i.s  living  animal.s,  the 
increase  of  such  animals,  born  after  delivery  to  the  plaintiff,  may 
be  ordered  to  be  returned  ;  *'  but  wool  shorn  from  sheep,  or  butter 
made  from  the  milk  of  cows,  would  be  comiiensated  for  in  dam- 
ages, not  ordered  to  be  returned.*^  But  the  children  of  a  slave 
might  be  recovered  with  the  mother ;  the  ownership  of  tlie  mother 
carries  with  it  the  ownersliip  of  her  cliildren.*" 

§  501.  Where  defendant  avoids  trial  upon  the  merits. 
"When  the  defendant  has  an  opportunity  to  contest  the  plaintiff's 

*»Schofield  V.  Ferrers,  4G  Pa.  St.  439;  XicUerson  v.  Chatterton.  7 
Cal.  570;  Brown  v.  Stanford,  22  Ark.  78;  McKeal  v.  Freeman,  25  Ind. 
151;  McGinnis  v.  Hart.  C  Clark,  (Iowa.)  210;  Conner  v.  Comstock,  17 
Ind.    90. 

"Mattingly  v.  Crowley,   42    111.   300. 

"Buckley  v.  Buckley,  12  Nev.  423;  Jordan  v.  Thomas,  31  Miss.  558. 
[Morris  v.  Coburn,  71  Tex.  406,  9  S.  W.  345;  Mann  v.  Arkansas  Co.. 
24  F'ed.  201;  Wade  v.  Gould,  8  Okla.  690,  559  Pac  11.  In  ascertainlnK  (ho 
Increase  during  the  period  of  dofomdant's  possession,  the  averagi^  in 
crease  of  like  animals  during  the  8ame  period  may  be  considered.  Mnnn 
1'.  Arkansas  Co..  nupra ;  a  creditor  levying  upon  livf-iitock  more  than 
three  years  after  an  alleged  fraudulent  sale  is  not  entitled  to  the  addi 
tlonij  made  by  the  alleged  fraudulent  purchaser  In  the  meantime,  or  the 
Increase  produced  by  the  purchaser's  attention,  labor  and  care. 
Wheeler  v.  Wallace.  53  Mich.  355.  19  N.  W.  33.] 

"Buckley   v.    Buckley.    12   Nev.   423. 

••Seay   v.   Bacon.  4   Sneed.    (Tenn.)    103. 


444  THE    LAW    OF    REPLEVIN. 

chiiiii  iiin)u  the  merits,  and  avoids  doing  so  by  technical  objections 
which  are  sustained,  for  purely  technical  reasons,  the  judgment 
for  a  return  does  not  necessarily  follow.'*"  If  the  writ  aliate  for 
the  mistake  of  the  clerk,  the  defendant  shall  not  have  return." 
When  the  defendant  jileads  in  abatement  for  a  variance  between 
the  writ  and  tlie  declaration,  and  is  successful,  no  return  shall  be 
awarded.  If  he  is  justly  entitled  to  a  return,  he  should  plead  and 
claim  it;  but  when  he  avoids  the  issue  upon  the  merits,  and  no 
fact  appearing  in  the  pleadings  or  the  record  showing  his  right  to 
possession,  a  return  will  not  be  ordered."  But  the  plea  may 
show  that  the  defendant  is  entitled  to  a  return  ;  if  so,  it  will  be 
allowed.*'  So,  where  the  action  is  defeated  only  because  it  is 
prematurely  brought,  there  is  authority  for  withholding  the 
order  for  a  return,  though  defendant  be  entitled  to  costs  and 
damages.^* 

§  502.  The  same.  Although  these  cases  by  no  means  stand 
alone,  they  cannot  l)e  said  to  represent  the  current  of  authorities. 
"When  the  defendant  pleaded  in  abatement  fur  want  of  a  bond  for 
costs  (the  plaintiff  being  a  non-resident  of  the  State),  and  the  plea 
was  sustained,  a  return  of  the  property  was  adjudged.^*  So,  in 
]Maine,  Avhen  the  writ  was  abated  because  of  a  defect  in  the  bond^ 
the  defendant  had  judgment  for  a  return.-^"  The  same  rule  was 
announced  in  a  well-considered  case  in  Vermont,  where  the  suit 
was  brought  in  a  county  other  than  that  in  which  the  goods  were 
detained.  The  court  dismissed  the  case,  but  ordered  a  return  of 
the  goods  to  the  defendant."  Where  the  plaintiff  is  defeated 
because  of  defect  in  his  suit  or  proceeding,  while  the  court  will 
usually  order  a  return  of  the  property,  the  judgment  is  not  con- 
clusive as  to  title ;  that  has  not  been  tried,  and  the  plaintiff  may, 

"Mcllvain's  Admr.  v.  Holland,  5  Har.   (Del.)   228. 

"Gilbert  on  Replevin,  175;  Gould  v.  Barnard,  3  Mass.  199,  2  Inst. 
340.  See  Parker  v.  Mellor,  Garth.  398;  Allen  v.  Darby,  1  Show.  99; 
Patter  v.  North,  1  Wm.  Saund.  347;  Cross  v.  Bilson,  6  Mod.  102. 

"Hartgraves  v.  Duval,  1  Eng.  (Ark.)  508;  Dickinson  v.  Noland,  2 
Eng.  (Ark.)  26;  Hill  v.  Bloomer,  1  Pinney,  (Wis.)  463;  Simpson  u. 
McFarland,  18  Pick.  430;    Gould  v.  Barnard,   3  Mass.   199. 

"  People  ex  reh,  etc.,  v.  N.  Y.  Com.  Plea,  2  Wend.  644. 

=**  Martin  v.  Bayley,  1  Allen,    (Mass.)    381. 

"Fleet  V.  Lockwood,  17  Conn.  233. 

"Greely    v.    Currier,    39    Me.    516;    McArthur    v.    Lane,    15    Me.    245. 

"Collamer  v.  Page,  35  Vt.  387. 


THE  RETURN.  445 

if  he  elect,  bring  another  suit  for  the  same  property,  to  determine 
that  question.^' 

§  503.  The  general  rule  stated.  It  is  more  probable,  how- 
ever, that  the  eases  cited  for  and  a.o^ainst  the  return  for  technical 
errors  upon  the  part  of  the  plaintitf,  do  not  present  the  real  prin- 
ciple which  lies  at  the  bottom  of  all  such  cases,  which  is,  that  the 
court  will,  in  all  cases  where  a  return  is  demanded,  rather  favor 
an  investigation  of  the  right  of  the  respective  parties,  at  the  time, 
and  award  or  withhold  the  judgment  for  a  return,  as  froui  such 
investigation  seems  proper.  Such  a  course  is  much  better  cal- 
culated to  do  justice  between  the  litigants  than  an  arbitrary 
penalt}'  inflicted  upon  the  defendant  for  asserting  and  standing 
upon  a  legal  right,  or  a  substantial  reward  to  a  plaintiff  who  has 
at  least  been  guilty  of  a  technical  error.^^ 

§  504.  The  same.  When  it  appeared  upon  the  trial  that  the 
plaintiff  in  replevin  had  but  a  limited  interest  in  the  goods,  and 
that  the  defendant  was  the  real  owner,  the  (juestion  of  return 
depended  upon  the  nature  of  the  interest  shown  b}''  each  party. 
Replevin  of  goods  attached  by  defendant  as  deputy  sheriff,  etc. ; 
trial ;  verdict  for  defendant,  who  moved  for  a  return.  Plaintiff 
offered  to  show  that  since  the  verdict  the  attachment  had  1  teen 
dissolved,  and  that  defendant's  interest  had  ceased.  On  appeal 
Dkwkv,  J.,  said  the  attaching  officer  may  be  liable  to  the  delttor ; 
the  dissolution  of  the  attacliment  may  have  been  the  effect  of 
proceedings  in  insolvency,  and  the  officer  may  be  liable  to  the 
assignee.     A  return  should  be  awarded.'"'" 

§  505.  Liquors  sold  to  enable  vendee  to  violate  the  law. 
Where  parties  sold  liquors  to  enable  their  vendee  to  sell  them  in 
violation  of  the  law,  the  vendors  could  not  sustain  replevin  ;  hav- 
ing biMUglit  their  suit  against  the  sherilV  who  had  attached  tlieni 
as  the  property  of  the  vendee,  they  could  not  claim  that  they 
should,  on  dismissal  of  their  suit,  be  left  willi  tiiem.  The  law 
fcjund  them  in  the  hands  of  the  sherilf,  and  whether  they  were 

"Collamer  v.   Page.  35  Vt.   393;    Thurber   r.  Richmond,   4fi   Vt.   39S. 

••  WalbrldKe  v.  Shaw,  7  Cush.  5fil ;  Whitwell  i'.  Wt-lls.  24  Tick.  33. 
When  the  right  of  property  and  iJOHseHHlon  are  put  in  Issue,  but  iiol 
passed  upon,  a  return  cannot  be  awarded.  Heerdu  r.  Heckwitli,  I 
Wis.    18. 

••Dawson  f.  Wetherl»ee,  2  Allen,  4»;i;  Kimball  i'.  TliompHon,  4  Cush. 
•441;   Johnson  v.  Neale,  G  Allen,  228. 


441;  TI11<:    LAW    OF    REPLEVIN. 

properly  or  not  subject  to  sale  or  process  in  the  sheriff's  hands, 
they  were  to  be  returned  to  him. 

§  r)OG.  When  the  parties  are  joint  tenants.  When  the 
property  belonged  to  tlu'  phiinliU'  and  ilefcndant  as  co-tenants* 
and  tlie  jury  so  found,  the  action,  of  course,  could  not  be  sus- 
tained ;  in  such  case  the  defendant  was  entitled  to  judgment  for 
a  return  ;  otherwise,  the  plaintiff,  though  not  entitled  to  sue  his 
co-tenant  in  this  action,  w<Mild  derive  the  same  benefit  from  his 
suit  as  if  he  had  rightfully  brought  the  action  ;"'  but  damages,  in 
case  the  property  be  not  returned,  can  only  be  for  the  interest 
which  the  defendant  has  in  it.'*'' 

§  507.  Where  the  property  is  lost  or  destroyed.  When 
it  appears  that  the  property  is  hopelessly  lost  or  destroyed, 
so  that  a  judgment  for  its  return  can  be  of  no  avail,  a  failure 
to  render  judgment  for  the  return  will  be  at  most  a  tech- 
nical error,  and  for  which  the  judgment  for  value  will  not  be 
reversed.®'  When  property  taken  is  a  living  animal,  and  it  dies 
before  return,  it  is  a  good  plea  to  say  it  is  dead  without  fault  of 
defendant ;"  and  in  such  cases  the  court  may  render  judgment 
for  the  value  without  ordering  a  return. 

§  5U8.  When  the  question  of  return  should  be  determined. 
The  right  to  a  return  should  be  determined  in  the  I'eplevin  suit." 
In  Missouri,  upon  a  judgment  of  non-suit  against  the  plaintiff,  a 
writ  of  inquiry  issues  to  ascertain  the  value  of  the  property  ;  also, 
whether  the  plaintiff  has  possession  or  not,  and  to  assess  the 
damages  for  the  taking  and  detention.*""'  The  judgment  for  return 
must  be  rendered  at  the  term  at  which  the  case  is  determined. 
If  the  fact  that  the  court  has  at  the  time  of  disposing  of  the  suit 
decided  to  award  a  return,  but  does  not  do  so,  does  not  authorize 
the  entry  of  such  judgment  at  a  subsequent  term."'  The  rules 
before   stated,   while   they   apply   generally  in  practice,  have  a 

«>  Mason  v.  Sumner,  22  Md.  312. 

"Jones  V.  Lowell,  35  Me.  539;  Witham  v.  Witham,  57  Me.  448; 
Bartlett   v.   Kidder,    14    Gray.    450. 

"Brown   v.   Johnson,   45   Cal.    77;    Boley   v.   Griswold,   20   Wall.    486. 

•"Carpenter  v.  Stevens,  12  Wend.  589,  though  this  is  disputed;  see 
post.  §  600,  et  seq. 

'^■' Harman  v.  Goodrich,  1  Greene,  (Iowa,)  25,  Mills  v.  Gleason,  21 
Cal.   274.     Unless  in  case  of  non-suit.     Ginaca  v.  Atwood,  8  Cal.  446. 

"Hohenthal  v.  Watson,  28  Mo.  360. 

•"Lill  V.  Stookey,  72   111.  495. 


THE  RETURN.  447 

peculiar  application  in  replevin  where  the  action  is  in  the  nature 
of  a  tort,  and  where  promptness  and  exactness  are  especially 
required. 

§  509.  Return  or  delivery  in  States  adopting  the  code- 
By  legislative  changes  in  many  of  the  States  this  action  has  be- 
come simply  one  of  "  claim  and  delivery."  The  plaintiff  claims 
the  property,  but  frequently  does  not  ask  delivery  until  after 
trial.  The  judgment  at  tlie  conclusion  of  the  suit  awards  prop- 
erty to  the  party  entitled  to  its  p.ossession ;  if  it  be  to  the  de- 
fendant from  whom  the  property  has  been  taken,  the  judgment 
is  for  a  return ;  if  to  the  plaintiff  who  has  not  had  delivery  be- 
fore the  judgment,  it  is  for  a  delivery.  The  judgments  in  such 
cases  are  controlled  by  very  similar  principles.  The  court,  after 
due  considerations  of  the  rights  of  the  parties,  awards  tlie  proj)- 
erty  to  the  one  entitled  to  it ;  ;f  that  party  is  not  in  possession, 
the  court  awards  a  delivery  to  him,  and  also  a  judgment  for  the 
value  to  be  collected  in  c^ise  the  order  for  delivery  is  not  complied 
with.  The  judgment  in  such  case  is  not  absolute,  but  is  in  the 
alternative  for  the  goods  or  for  the  value  in  case  delivery  cannot 
Ije  had,*"  and  in  case  delivery  in  compliance  with  such  judgment 
is  not  made,  execution  issues  against  the  party  to  collect  the 
value. 

§510.  The  writ  of  return  must  describe  the  goods.  It 
was  an  old  rule  that  the  sluTitf,  upon  a  writ  of  retonio,  is  not 
obliged  to  deliver  the  goods  unless  they  were  "shown  to  him,"  or 
so  clearly  described  in  the  writ  that  there  can  l)e  no  question 
about  their  identity.*^" 

"This  rule  is  general,  though  in  some  States  the  party  may  elect  to 
take  Judgment  for  the  value  alone. 

"Rast.  Ent.  p.  570^;  Taylor  v.  Wells,  2  Saund.  74ft.  It  is  a  good  re- 
turn to  say  that  "  none  came  to  show  the  beasts."  Bac.  Abr.  title 
Rep.  H;  Wilson  v.  Oray,  8  Walts,  (Pa.)  34.  It  is  also  held  that  if  the 
goods  are  described  in  the  writ  of  return  as  they  were  described  in  the 
writ,  it  is  sufficient,  and  a  rule  that  the  sheriff  must  make  inquiry, 
if  he  cannot  find  the  goods  without.  These  rules  are  not  intended 
to  encourage  looseness  in  description,  which  should  in  all  writs  be 
full   and   accurate. 


448 


THE    LAW    OF    REPLEVIN. 


CHAPTER  XVII. 


DAMAGES. 


511 


512 


Section. 

By  common  law,  damages  al- 
lowed to  plaintiff,  not  to  de- 
fendant     

General  rule  now  is  that  dam- 
ages are  awarded  to  the  suc- 
cessful party    .... 

Allowed  only  as  an  incident  to 
the  proceedings  for  possession  513 

May  be  allowed  to  botli  parties  514 

The  reasons  for  the  rule     .        .  515 

Plaintiff  cannot  dismiss  so  as 
to  avoid  a  hearing  upon  the 
question  of  damages  or  re- 
turn   516 

AVhere  the  suit  is  dismissed  for 
informality       .         .        .  517,  518 

The  rule  in  such  cases        .         .  519 

The  rules  applicable  to  actions 
of  tort  generally  apply  to  re- 
plevin ;  distinctions  stated 

Damages  to  plaintiff  . 

Damages  to  defendant 

The  same.  Not  allowed  unless 
a  return  of  the  property  is 
claimed     ....  523,  524 

Tlie  rules  for  estimating  dam- 
ages   525 

Nominal  damages        .         .  526,  527 

Party  claiming  damages  must 
show  the  extent  of  his  inju- 
ries by  proof     .         .         .  528,  529 

Compensation  the  object  of  tlie 
award 530 

How  the  amount  of  compensa- 
tion is  ascertained  .        .        .531 


520 
521 
522 


Section. 

When  tlie  goods  have  changed 
in  value    ..... 

Tlie  rule  giving  compensation 
applies  only  to  cases  where 
no  malice  or  willful  wrong  is 
charged    

When  taking  was  wrongful, 
damages  estimated  from  the 
time  of  taking,  otherwise 
from  the  time  of  conversion  . 

Depreciation  in  value  a  proper 
element  of  damages 

The  rule  not  uniform 

Interest  as  a  measure  of  dam- 
ages   

How  assessed     .... 

When  a  part  of  the  goods  only 
are  found         .... 

In  suit  on  bond  .... 

When  the  suit  is  concerning  the 
validity  of  a  sale 

Where  defendant  is  a  stake- 
liolder       ..... 

Value  of  property  when  allowed 
as  damages       .         .         .  543,  544 

When  value  is  regarded  as  at- 
taching    .....  545 

Value  at  the  time  of  conver- 
sion     546,  547 

This  rule  is  applicable  wlien 
the  value  of  the  property  is 
stable ;  rule  when  the  value 
varies        .....  548 

The  liighest  value  after  taking 
and  before  trial        .        549  to  552 


532 


533 


534 

535 
536 

537 
538 

539 
540 

541 

542 


DAMAGES. 


449 


Section 

Qualifications  of  the  rule  :  suit 
must  be  brought  within  a 
reasonable  time         .         .  553,  554 

AViiat  is  highest  market  value     .  555 

Further  qualifications  of  the 
rule 556 

Measure  of  damages  in  suit  for 
a  note  or  bill  .         .  557  to  559 

Value  of  coin  sometimes  esti- 
mated in  currency  .         .         .  5G0 

Damages  occasioned  bv  party's 
own  act  not  allowable     .        .  561 

The  place  where  tlie  value  is 
considered  as  attaching        .  502 

The  same.  General  rule  is  val- 
ue where  the  goods  were  de- 
tained ;  value  in  another  mar- 
ket may  be  evidence       503  to  505 

The  same.  Reason  for  the  rules 
stated 566 


Section. 

Trespasser  cannot  recover  for 
his  labor  in  increasing  the 
value 567 

Or  make  a  profit  out  of  his 
wrongful  taking     .         .         .    568 

Statement  of  value  in  tlie  affi- 
davit usually  binds  the  plain- 
tiff, but  not  the  defendant     .  569 

Appraisement  does  not  bind 
either  paitv      ....  570 

Special  damages  must  be  si)ec- 
ially  pleaded    .        .         .         .571 

Loss  by  interruption  of  busi- 
ne.ss 572,  573 

Loss  of  real  or  probable  profits  574 

Party  claiming  damages  must 
do  what  he  can  to  avoid  loss  575 

Expenses  ;  counsel  fees,  etc.  576,  577 

Expense  of  taking  and  remov- 
ing the  property      .         .         .  578 


§  51L  By  common  law,  damages  allowed  to  plaintiff,  not 
to  defendant.  l>y  the  coinniou  law,  the  plaintiff  in  replevin,  if 
successful,  was  entitled  to  damages  ;  the  defendant  or  avowant 
was  not.'  This  was  because  the  action  would  lie  only  in  cases  of 
distress  for  rent,  where  the  lord  distraining  had  no  right  to  use 
the  cattle,^  and  was  not  damaged''  by  the  replevin  while  the 
tenant  was  always  damaged  by  the  taking  and  consequent  loss  of 
the  u.se  of  his  beasts.  The  statutes  7  II.  VIII.  c.  4,  and  21  II. 
\'III.  c.  19,  gave  the  defendant  a  right  to  damages,  the  same  as 
the  plaintiff  was  entitled  to  before  the  statute  was  enacted.  'I'he 
governing  principle  of  the.st>  statutes  has  obtained  the  forro  of 
law  g(,*nerally  in  this  country — in  some  States  l)y  direct  adoption  of 
the  conunon  law  and  the  sUitutes  in  aid  tliere(»r,  and  in  others  the 
courts  have  ad()i)ted  the  sulistantial  piinci[tles  of  tlies(>  statutes  to 
the  rcMiuirements  of  more  nKjdcrn  jurisprudence.  'J'iie  (-(jmnion 
law  to  prevent  vexatious  suits,  rc(iuiic(l  tiic  ]tlaintiff  to  find 
j)ledges  to  j)ro.secut(! ;  and  he  was  amerced  if  he  failed  to  sustain 
his  claim.     As  that  practic(!  fell   into  disuse,  costs  were  awai(h'(l 

'  Winnard    t'.    P'OHter,    Lutw.    :{7-l;     Hoi)i'well    v.    Price,    U    liar.    &    C 
(Md.)    275. 

•  Anon.    Dyer,   280. 

•Thf!  Hhfrlff.   It   HM-mK.  ha:<  no   rlRht    to  ukp  cattle  bol/.cd,  RrlggB   r. 
GleaHon.  29  Vt.  80;    Lamb  v.  Day.  8  Vt.  407. 
2'J 


450  THE    LAW    OF    REPLEVIN. 

to  the  successful  party,  these  not  being  sufficient  in  all  cases  to 
restrain  frivolous  or  vexatious  suits,  the  law  gave  the  successful 
party  damages/ 

§  512.  General  rule  now  is  that  damages  are  awarded 
to  the  successful  party.  Under  modern  practice,  tlie  general 
rule  may  be  stated,  that  the  successful  party  in  replevin  is  en- 
titled to  damages  against  his  opponent  in  all  cases  wlicre  damages 
are  claimed  in  his  i:)leading.  The  amount  may  be  nominal,  or 
substantial,  as  circumstances  recpiire.-'  The  (juestion  of  damages 
is  so  far  an  essential  one  in  replevin,  that  a  failure  to  claim  them 
in  the  declaration  is  a  fatal  defect.''  The  successful  party  in  this 
action  may  have  judgment  for  the  property,  or  for  its  value,  in 
case  it  is  not  delivered.  It  is  very  evident  that  in  many  cases 
the  restoration  of  the  goods  or  the  payment  of  the  value  falls  far 
short  of  compensating  for  the  injury  plaintitf  has  sustained.'  In 
such  cases  damages  are  awarded  to  make  good  the  loss.** 

§  513.  Allowed  only  as  an  incident  to  the  proceeding  for 
possession.  IJeplevin  is  not  the  proper  action  for  tlie  recovery 
of  damages,  except  as  an  incident  to  the  proceeding  for  posses- 
sion.'    So   when,  after   a   demand   and   refusal,  but  before  suit 


*Savile  v.  Roberts,  1  Ld.  Raymond,  380. 

'In  Kendall  v.  Fitts,  2  Foster,  (N.  H.)  9,  it  was  said,  that  in  replevin 
damages  should  always  be  assessed  for  the  plaintiff  or  defendant.  In 
the  subsequent  case  of  McKean  v.  Cutler,  48  N.  H.  372,  it  was  said, 
that  a  finding  of  damages  was  not  essential  to  the  validity  of  a  judg- 
ment in  replevin.  See,  also,  as  to  the  general  rule.  Brown  v.  Smith, 
1  N.  H.  38;  Etter  v.  Edwards,  4  Watts,  (Pa.)  68;  Booth  v.  Ableman, 
20  Wis.  24;  Graves  v.  Sittig,  5  Wis.  219;  Creighton  v.  Newton,  5  Neb. 
100;  School  Dist.  v.  Shoemaker,  5  Neb.  36;  Wright  v.  Williams,  2  Wend. 
636;  Buckley  v.  Buckley,  12  Nev.  423;  Frey  v.  Dahos,  7  Neb.  195; 
Seymour  v.  Billings,  12  Wend.  286;  Clark  v.  Keith,  9  Ohio,  73;  Hohen- 
thal  V.  Watson,  28  Mo.  360;  Williams  v.  Phelps,  16  Wis.  87.  The  jury 
should  determine  whether  the  plaintiff  had  the  right  of  property,  or  the 
right  of  possession  only,  at  the  commencement  of  the  suit,  and  if  they 
find  either  in  his  favor,  they  should  assess  such  damages  as  are  proper. 
Williams  v.  West,  2  Ohio  St.  86.  Replevin  sounds  in  damages  like 
trespass.     Herdic  v.  Young,  55  Pa.  St.  1,  76. 

'Faget  V.  Brayton,  2  Har.  &  J.  (Md.)  350;  Crosse  v.  Bilson,  6  Mod. 
102. 

'  See  cases   last  cited. 

'Stevens  v.  Tuite,  104  Mass.  333;  Hemstead  v.  Colburn,  5  Cranch. 
C.  C.  655. 

'  Johnson  v.   Weedman,   4   Scam.   495. 


DAMAGES.  451 

bi'ought,  the  defendant  offered  to  restore  the  property,  the  phiin- 
tiff  on  trial  insisted  that  his  right  to  damages  was  complete  upon 
the  refusal  of  the  defendant  to  deliver ;  that  a  subsequent  volun- 
tary surrender  would  not  defeat  the  action ;  the  court  held  that 
surrender  of  the  property  was  a  bar  to  damages,'"  though  i)erhaps 
the  party  might  have  been  entitled  to  such  damages  as  accrued 
after  the  refusal  and  before  the  surrender.  When  a  distress  was 
made  of  horses  and  cattle,  and  one  horse  and  cow  not  levied  upon 
followed  the  others  to  the  place  where  they  were  impounded, 
although  an  effort  was  made  to  drive  them  back,  and  the  next 
day  the  tenant  was  notified  that  he  could  get  them  by  going  for 
them,  replevin  would  not  lie  ;  the  defendant  never  had  or  claimed 
the  possession.  The  only  action  which  could  be  sustained  would 
be  an  action  for  damages  independent  of  the  possession,  and  for 
that  replevin  is  not  adapted." 

§  514.  May  be  allowed  to  both  parties.  The  verdict  and 
judgment  may  sometimes  be  against  both  parties.  That  is, 
the  plaintiff .  may  have  judgment  for  a  portion  of  the  property, 
while  the  remainder  may  be  ordered  to  be  returned  to  the  de- 
fendant. In  such  cases  eacli  party  is  entitled  to  judgment 
against  his  opponent,  for  damages  and  costs,  so  far  as  he  is  suc- 
cessful." The  general  power  of  the  court  extends  without  doubt 
to  set  off  the  damages  and  costs  one  against  the  other,  and  to 
give  judgment  for  the  balance.'^ 

§  515.  The  reasons  for  the  rule.  It  must  be  kept  in  mind 
that  in  this  action  the  plaintiff's  suit  is  not  only  for  his  goods 
but  for  the  damages  he  has  sustained  by  reason  of  their  wrong- 

"  Savage    v.    Perkins,    11    How.    Pr.    R.    17. 

"  Lindley  v.  Miller,  67  111.  245.  See,  also.  Williams  v.  Archer.  5 
M.  G.  &  S.  318;  Jansen  v.  Effey,  10  Iowa,  227;  Whitfield  ?'.  Whitfield, 
40  Miss.  367;  Frazier  v.  Fredericks,  24  N.  J.  L.  163;  Broadwater  v. 
Dame.    10   Mo.    278. 

"Brown  r.  Smith.  1  N.  H.  36;  Williams  v.  Beede,  15  N.  H.  4S3; 
Powell  V.  Hinsdale,  5  Mass.  343;  Wright  v.  Mathews.  2  Blackf.  (In.i.) 
187;  Clark  v.  Keith,  9  Ohio.  73;  Seymour  v.  Billings.  12  Wehd.  286. 

"McLarren  v.  Thompson,  40  Me.  285;  Poor  v.  Woodburn,  25  Vt.  239. 
There  were  six  Issues;  the  jury  found  three  for  each  party:  the  court 
allowed  each  party  all  the  costK  upon  the  pleadings  where  he  had 
BUccfKided,  and  judgment  was  accordingly.  V'oiluin  v.  Simpson.  2 
Bos.  &  Pull.  368.  In  this  reiilevin  dlfferK  from  other  actions.  Butcher 
V.  Green,  Doug.  (Kng.)  652;  Wright  v.  WIlllamH,  2  Wend.  633;  Porter 
V.   WllJet,    14   Abh.    I'ru.   Rei).   319. 


452  THE    LAW    OF    REPLEVIN. 

fill  taking  or  detention,  wliicli  liiniislu^d  the  foundation  of  his 
action ;  and,  if  lie  succeeds  in  establisliing  his  claim,  he  is  en- 
titled not  only  to  his  property,  or  its  value,  hut  to  such  damages 
as  will  be  just.'*  The  claim  for  damages  is  as  much  a  part  of 
the  case  as  the  contest  for  the  possession  of  tlie  goods,'"  but  if 
the  plaintiff,  for  any  cause,  fails  or  dismisses  his  suit,  or  submits 
to  a  non-suit,  the  defendant  is  entitled  to  a  judgment  for  a  return 
of  the  property,  or  for  its  value,  and  to  such  damages  as  shall 
compensate  him  for  the  injury  he  has  sustained.'*  Tlie  de- 
fendant is  suing  for  a  return  of  the  goods  and  for  damages,"  and 
if  successful  is  entitled  to  judgment,  and  upon  a  proper  showing 
to  the  same  damages  the  plaintiff  would  have  had  had  he  been 
successful.'* 

§  516.  Plaintiff  cannot  dismiss  so  as  to  avoid  a  hearing 
upon  the  question  of  damages  or  return.  The  plaintiff  can- 
not dismiss  his  suit  so  as  to  avoid  a  hearing  as  to  the  value  of 
the  property  and  assessment  of  damages.  In  case  of  a  dismissal 
for  that  purpose,  the  court  will  retain  the  case  and  hear  and  de- 
termine the  questions  as  to  damages  and  a  return ; '®  and  if  the 
plaintiff  should  dismiss  his  suit,  it  would  not  affect  the  defend- 
ant's right  to  an  action  on  the  bond.'" 

"Messer  v.  Baily,  11  Foster,  (N.  H.)  9;  Bell  v.  Bartlett.  7  N.  H.  178; 
Dorsey  v.  Gassaway,  2  Har.  &  .1.  (Md.)  402;  Graves  v.  Sittig,  5  Wis. 
223;  Parham  v.  Riley,  4  Cold.  (Tenn.)  10;  Gray  v.  Nations,  1  Ark. 
569. 

"Buckley  v.  Buckley,  12  Nev.   430. 

"Fallon  V.  Manning,  35  Mo.  274;   Collins  v.  Hough,  26  Mo.  149. 

"Gould  V.  Scannel,  13  Cal.  430;  Bonner  v.  Coleman,  3  B.  Mon.  (Ky.) 
464;    Smith    v.    Snyder,    15   Wend.    324. 

"Berghoff  v.  Heckwolf,  26  Mo.  512;   Smith  v.  Winston,  10  Mo.  299. 

"Mikesill  v.  Chaney,  6  Port.  (Ind.)  52;  Ranney  v.  Thomas,  45  Mo. 
112;   Berghoff  v.  Heckwolf,  26  Mo.  512. 

=°Hall  V.  Smith,  10  Iowa,  45. 

Note  XXVIII.  Discontinuance  of  the  action. — Plaintiff  who  has  ob- 
tained the  goods  is  not  at  liberty  to  dismiss  his  action,  without  liability 
to  the  defendant;  unless  he  proceeds  and  establishes  his  right  the 
defendant  is  entitled  to  a  judgment  for  the  return,  Garber  v.  Palmer, 
47  Neb.  699,  66  N.  W.  656.  And  is  entitled  to  have  an  adjudication,  in 
that  action,  of  his  right  to  the  goods,  Vose  v.  Muller,  48  Neb.  602,  67 
N.  W.  598.  And  the  court  may  refuse  to  allow  a  discontinuance,  Ault- 
man  r.  Reams,  9  Neb.  487,  4  N.  W.  81.  The  court  may  nevertheless 
retain  the  suit,  hear  evidence,  and  if  defendant  establishes  his  right. 


DAMAGES.  453 

§  517.  Where  the  suit  is  dismissed  for  informality.  It 
happens  not  unfrequently  that  the  plaintLQ:  is  compelled  to  dis- 

award  him  a  return  of  the  goods.  SauGsay  v.  Lemp  Co.,  52  Neb.  627, 
72  N.  W.  1026. 

The  suit  is  not  to  be  discontinued  by  an  agreement  between  the 
plaintiff,  and  one  of  several  defendants,  the  others  having  adverse  in- 
terests not  consenting,  Saunders  v.  Closs,  117  Mich.  130,  75  N.  W.  295. 

And  though  there  be  no  adjudication  of  the  rights  of  parties  in  the 
replevin  suit  defendant  may  recover  full  damages  in  an  action  on  the 
bond,  McVey  r.  Burns,  14  Kans.  291;  the  value  of  the  goods,  Manning  i;. 
Manning,  26  Kans.  98. 

A  non-suit  cannot  be  ordered  in  the  federal  courts,  against  the  ob- 
jections of  plaintiff,  DeWolf  v.  Rabaud,  1  Pet.  476,  7  L.  Ed.  227. 

Nor  in  the  territories,  Holt  v.  Van  Eps,  1  Dak.  206,  46  N.  W.  689.  In 
Ahlman  v.  Meyer,  19  Neb.  63.  26  N.  W.  584,  Conii.  J.,  declared  that  he 
knew  of  no  case  which  would  justify  the  granting  of  a  non-suit  in  the 
action  of  replevin.  The  reason  assigned  by  his  honor  is  that  both 
parties  are  actors  and  are  equally  interested  in  the  disposition  of  the 
cause  upon  its  merits. 

But  where  the  property  is  not  seized  under  the  writ,  or  on  failure 
of  plaintiff  to  give  bond,  is  returned  to  defendant,  the  court  has  no 
power  over  the  goods,  and  the  plaintiff  is  entitled  to  discontinue, 
Saussay  v.  Lemp  Co.,  supra.  Davison  v.  Gibson,  22  C.  C.  A.,  511,  76 
Fed.  717. 

If  thirl  persons  have  interpleaded  they  may,  nothwithstanding  such 
non-suit,  litigate  between  themselves  the  question  of  who  is  entitled 
to  the  property,  Dawscn  v.  Thigpen,  137  N.  C.  462,  49  S.  E.  959.  Judg- 
ment of  non-suit  terminates  the  plaintiff's  right  to  possession  of  the 
goods  replevied;  if  he  fails  thereupon  to  restore  them  to  the  defendant 
he  subjects  himself  to  an  action  upon  the  bond,  and  he  acts  at  his  peril 
in  delivering  them  to  anyone  else,  Tinsley  v.  Block,  98  Ga.  243,  25  S.  E. 
429.  Testimony  of  the  plaintiff  that  before  the  date  of  his  writ  he  had 
made  an  arrangement  to  sell  the  goods  and  had  sold  them  but  had  not 
gotten  his  pay,  does  not  necessarily  import  a  conditional  sale;  and  the 
court  Is  not  warranted  in  ordering  a  non-suit  in  such  case.  Brooks  v. 
Libby,  89  Me.  151.  36  Atl.  66. 

Filing  an  amended  declaration  against  one  only  of  two  defendants, 
is  equivalent  to  discontinuance  of  the  artion  as  to  the  other.  Mac- 
Lachlan  v.  Pease,  171  Ills.  527,  4!t  N.  K.  714. 

Defendant  is  not  entitled  to  a  disfontlnuance  of  the  action  by  dis- 
claiming title.  He  may  still  be  liable  for  damages  and  costs.  Cliocii  c. 
Porter.  C6  Ind.  194. 

If  defendant  surrender  part  of  the  Roods,  the  plaintiff  Is  entitled  to 
judgment  for  these,  and  for  at  least  nominal  damagos.  Judgment  of 
discontinuance  Is  error.    Cardwill  t'.  Gllmoro,  86  Ind.  428. 

I'pon  diHcontlnuanre  of  an  action  of  replevin,  in  which  goods  seized 
under  execution  are  replevied,  the  Hen  of  the  execution   at  once   re- 


454  THE    LAW    OF    REPLEVIN. 

miss  his  suit  for  some  informality  in  tlie  proceeding,  where  no 
trial  upon  the  merits  ean  be  had,  but  when  the  court  is  justified 
in  orderhig  a  return  of  the  property.  In  such  case,  the  question 
of  assessing  damages,  in  addition  to  the  return  of  the  property,  is 
one  of  some  difficulty.  If,  ior  exami)le,  the  suit  is  dismissed  for 
some  informality  in  the  affidavit,  writ  or  bond,  the  judgment  may 
be  for  a  return  ;  the  defendant  may  also  ask  for  an  assessment  of 
his  damages  for  the  wrongful  taking.  In  such  case  no  evidence 
of  the  plaintiff's  title  is  permitted,  when,  in  case  an  opportunity 
had  been  offered,  he  might  have  been  abundantly  able  to  show 
himself  to  be  the  owner  of  the  goods,  and  entitled  to  their  p(js- 
session.  The  judgment  for  return  in  such  case  does  not  aif'ect 
the  question  of  title  to  the  property,  but  the  judgment  for  dam- 
ages, if  rendered,  would  be  conclusive  to  that  extent,  and  the 
plaintiff  compelled  to  paj'  them  without  redress,  although, 
according  to  the  equities  of  the  case,  the  property  was  his  own, 
and  wrongfully  taken  from  him.  Cases  are  not  wanting  wliich 
hold  that  where  the  defendant  sets  up  some  purely  technical 
defense  to  defeat  the  plaintiff,  and  thus  avoids  a  hearing  upon  the 
merits  no  return  will  be  awarded  ;  "  but  the  current  of  authority 
is  doubtless  the  other  way." 

"  Dickinson  v.  Noland,  2  Eng.  (Ark.)  26;  Hartgraves  v.  Duval,  1  Eng. 
(Ark.)  506;  Hill  v.  Bloomer,  1  Pinney,  (Wis.)  463;  Gould  v.  Barnard,  3 
Mass.  199. 

--Crosse  i;.  Bilson,  6  Mod.  102;  Salkold  v.  Skelton,  Cro.  Jac.  519;  Pres- 
grave  v.  Saunders,  2  Ld.  Raym.  984;  Barry  v.  O'Brien,  103  Mass.  521; 
Dawson  v.  Wetherbee,  2  Allen,  (Mass.)  462;  Ranney  v.  Thomas,  45  Mo. 
112;  Wilkins  v.  Treynor,  14  Iowa,  393;  Mason  v.  Richards,  12  Iowa,  74; 
Jansen  v.  Effey,  10  Iowa,  227;  Fleet  v.  Lockwood,  17  Conn.  233;  Gilbert 
on  Replevin,  p.  169. 

vives.  Clow  V.  Gilbert,  54  Ills.  Ap.  134,  citing  Burkle  v.  Luce,  1  N.  Y. 
163. 

The  sheriff  from  whom  goods  have  been  replevied,  may  on  the  dis- 
continuance of  the  replevin,  have  trover  for  the  value  against  the  plain- 
tiff in  the  replevin.  Id. 

If  plaintiff  dismiss  his  action,  the  goods  having  been  retained  by 
defendant,  he  may  in  a  second  suit  recover  damages  from  the  date  of 
the  original  detention.     Allen  v.  Steiger,  17  Colo.  552,  31  Pac.  226. 

Judgment  of  discontinuance  is  not  conclusive  as  to  the  title;  plain- 
tiff having  paid  the  value  of  the  goods,  upon  the  defendant's  election 
to  take  the  value,  may  recover  that  value  in  a  second  action,  upon  the 
original  conversion.    Tinsley  v.  Block,  98  Ga.  243,  25  S.  E.  429. 

Where  unfair  advantage  is  sought  of  a  discontinuance  the  court  will 
reinstate  the  action.  Seals  v.  Stocks,  100  Ga.  10,  30  S.  E.  278. 


DAMAGES.  455 

§  518.  The  same.  In  a  well  considered  case  in  Vermont, 
the  goods  were  ordered  to  be  returned  for  informality  in  bringing 
the  suit,  without  any  investigation  into  the  title,  defendant 
insisting  upon  an  assessment  of  damages.  The  court  denied  his 
application,  saying,  that  the  disputed  questions  of  title  were  not 
determined,  and  that  damages,  (beyond  nominal,)  should  not 
follow  the  plaintiff's  failure  to  sustain  his  suit  for  mere  irregular- 
ity.-^ In  Maine,  after  a  judgment  that  the  writ  abate,  an  order 
for  a  return  "was  made  ;  but  the  court  refused  to  assess  damages, 
upon  the  ground  that  there  was  no  issue  upon  which  they  could 
be  estimated.-* 

§  519.  The  rule  in  such  cases.  The  true  rule  seems  to  be, 
that  judgment  fur  a  return  is  only  rendered  when  the  court 
perceives  such  a  course  to  be  just ;  it  will  always  hear  evidence 
when  a  proi>er  case  is  presented,  as  to  whether  the  order  for 
return  should  be  made  or  not.  At  the  same  time  it  will  consider 
all  such  facts  as  affect  the  question  of  damages  ;  and  if,  from  all 
the  facts,  it  appears  that  the  defendant  has  avoided  a  trial  upon 
the  merits,  and  that  the  jilaintiff  fails  from  a  simple  irregularity, 
when  he  otherwise  would  be  likely  to  succeed,  damages  beyond 
nominal  will  very  rarely,  if  ever,  be  awarded.^* 

§  5ii0.  The  rule  applicable  to  actions  of  tort  generally 
apply  to  replevin  ;  distinctions  stated.  The  rules  fur  assess- 
ing damages  in  other  cases,  in  the  nature  of  tort,  will  generally 
be  applicaljle  to  replevin.  This  distinction,  however,  exists,  that 
in  replevin  the  plaintiff  asserts  a  continuing  ownership  in  him- 
.self ;  he  seeks  a  return  of  A/.-*  goods,  and  damages  for  the  inter- 
ruijtion  to  A/.s-  possession.  In  trover  the  i)laintitt"  asserts  that  the 
defendant  has  converted  the  property  to  his  own  use  ;  he  there- 
fore recognizes  the  transfer  of  the  title  to  the  defendant,  and 
seeks  simply  a  compensation  for  its  value,  not  its  return.  It 
foUow.s,  that  in  trov(;r  the  jiarly  can  never  recover  f()r  the  use  of 
the  property,  while  it  is  etjually  clear  that  in  replesiii  the  suc- 
eessful  party  niay,  in  many  cases,  be;  entitled  to  recover  the 
v;due  of  tlie  use  of  the  i)i<>perty  of  which  he  has  been  wrongfully 
<lepriv(?d.'*     Again,  in   trover,  the  right  of  property,  general  or 

"Collomer  v.  Page,  35  Vt.  3'J«J.  See.  also,  Tlnnber  r.  Uichnjond.  4G 
Vt.  399. 

"McArthur  v.  Lane,  15  .Maine,  245. 

■Pierce  v.  Van  Hyke,  «;  Hill,  (N.  Y.)  C>\3.     See  anlc.  Ch.  — . 

"McGavork  v.  Chamberlain,  20  III.  220;  Allen  r.  Fox.  51  N.  Y.  5»M; 
Williams  V.  Phelps,  IC  Wis.  87;  Seott  v.  Elliott.  r,3  N.  V.  '2\i'>. 


456  THE    LAW    OF    REPLEVIN. 

special,  is  .always  in  question,  while  in  replevin  the  right  of 
possession  may  alone  be  in  issue.  This  does  not  change  the  fact, 
liowever,  that  in  their  substantial  features  great  sniiilarity  exists 
between  all  actions  brought  for  the  conversion  of  chattels." 

§  521.  Damages  to  plaintiff.  If  the  plaintiff  prevails,  the 
judgment  is  that  the  property  belongs  to  him,  that  he  rightfully 
took  it  by  his  writ,  and  that  he  is  entitled  to  damages  and  costs, 
as  well  as  judgment  for  the  property .'■"'  Where  the  proj)erty  was 
delivered  to  him  upon  the  writ,  his  damages  only  include  such 
sum  as  will  compensate  him  for  the  injury  he  has  sustained  by 
reason  of  the  wrongful  taking  or  subsequent  detention,  together 
with  any  depreciation  in  value  it  may  have  suffered  '*  up  to  the 
time  when  he  obtained  it  by  virtue  of  his  writ,  and  not  the  value 
of  the  property.  If  the  property  was  not  delivered  upon  the 
writ,  then  its  value,,  in  addition  to  the  damages  for  detention, 
may  form  a  proper  element  of  compensation.^" 

§  522.  Damages  to  defendant.  Where  the  defendant 
makes  claim  to  the  property,  and  is  successful,  he  is  entitled  to 
have  it  restored  to  him,  or  its  value,  with  damages  for  the  loss  he 
has  sustained  by  the  interruption  to  his  possession,  estimated  by 
substantially  the  same  rules  employed  in  estimating  the  plaintiff's 
damages.  Damages  to  the  defendant,  however,  are  but  an  inci- 
dent to  the  judgment  for  a  return.  If  a  return  is  adjudged,  and 
the  property  has  diminished  in  value  while  in  plaintiff's  posses- 
sion, this  decrease  must  be  allowed  to  the  defendant ;  otherwise, 
the  plaintiff  might  return  it  in  a  depreciated  condition.  If  it  has 
increased  in  value,  the  increase  must  be  allowed  him,  as  the  prop- 
erty is  his,  and  he  is  entitled  to  the  increase  of  his  own  proi)erty." 

§  52.3.  The  same.  Not  allowed  unless  a  return  of  the 
property  is  claimed.     The  order  for  a  return  is  in  the  nature  of 

"  See  ante,  §  44,  et  seq. 

-'Moore  v.  Shenk,  3  Barr.  (Pa.)  13;  Stevens  v.  Tuite,  104  Mass.  333; 
Nicholas  Ins.  Co.  v.  Alexander,  10  Humph.  (Tenn.)  383;  Fisher  v. 
Whoollery,  25  Pa.  St.  198. 

=•  Young  V.  Willett,  8  Bosw.   (N.  Y.)  48G. 

'"Ewing  V.  Blount,  20  Ala.  694;  Russell  v.  Smith,  14  Kan.  374;  Fisher 
V.  Whoollery,  25  Pa.  St.  197;  Barkesdale  v.  Appleberry.  23  Mo.  389; 
Hohenthal  v.  Watson,  28  Mo.  360;  Suydam  v.  Jenkins,  3  Sandf.  615; 
WMlliams  v.  Archer.  5  M.  G.  &  S.  (57  E.  C.  L.)  324. 

^"Mayberry  v.  CliiTe,  7  Cold.  (Tenn.)  125;  Hooker  v.  Hammill,  7  Neb. 
231;  Allen  v.  Judson,  71  N.  Y.  76;  Pearce  v.  Twichell,  41  Miss.  345;  Neis 
V.  Gillen,  27  Ark.  187;  Pierce  v.  Van  Dyke,  6  Hill,  (N.  Y.)  613. 


DAMAGES.  457 

a  cross  judgment.  There  must  be  some  averment  in  the  plead- 
ings to  sustain  it."  It  follows  that  where  the  defendant  by  his 
pleading  disclaims  a  judgment  for  a  return,  as  he  does  by  the 
plea  of  non  cepit  or  non  detiuef,  etc.,  without  other  pleas,  he  can- 
not have  damages.^* 

§  5*24.  The  same.  Exceptions.  It  is  provided  by  statute 
in  some  Stat^is  that  the  plea  of  ?ion  cepit  or  7ion  detinet  shall  put 
in  issue  the  plaintiff's  title  as  well  as  the  wrongful  taking  or  de- 
tention. In  such  cases  the  defendant  may  have  a  return  upon 
the  plea  of  noii  cepit  or  }wn  detinet,  and  if  he  have  judgment 
for  a  return  he  may  also  have  judgment  for  damages.  Tlie 
pleader  in  such  case,  upon  following  the  forms  laid  down  in  the 
local  statute,  must  be  regarded  as  asserting  all  the  rights  which 
are  allowed  to  that  form  of  plea.^* 

§  525.  The  rules  for  estimating  damages.  The  rules  for 
estimating  damages  in  this  action  are  by  no  means  as  simple  as 
they  at  first  appear.  Any  general  rule,  how^ever  well  it  may  be 
adapted  to  a  particular  case,  cannot  fail  to  work  hardship  in 
others.  It  is  more  important,  says  the  court  in  Hamer  v.  ILitha- 
way,  33  Cal.  117,  that  the  rule  should  be  certain,  than  that  it 
should  be  entirely  beyond  question  on  principle.  With  this 
general  doctrine  of  stability  all  must  concur.  It  must  be  added, 
however,  that  correct  principles  can  alone  become  certain.  In 
this,  as  in  other  actions  at  law,  the  case  is  tried  and  determined 
upon  the  rights  of  the  parties  as  they  existed  at  the  time  the  suit 
was  begun,  but  damages  may  be,  and  most  usually  are,  assessed 
up  to  the  time  of  the  rendition  of  judgment,  the  same  as  interest 
upon  a  note.     Damages  to  the  defendant  must  be  so  assessed." 

"Gould  V.  Scannell,  13  Cal.  430;  Bonner  v.  Coleman,  3  B.  Mon.  (Ky.) 
464;  Smith  v.  Snyder,  15  Wend.  324. 

"The  defendant  is  entitled  to  damages  only  when  he  shows  by  his 
pleadings  that  he  is  entitiefl  to  a  judgment  for  the  goods.  When  by  his 
pleading  he  admits  the  plaintiff's  right  to  the  goods,  it  would  be  absurd 
to  award  him  damages,  even  though  he  have  a  verdict  and  judgment  for 
costs.  Hopkins  v.  Burney.  2  Kla.  44;  Gould  t'.  Scannell,  13  Cal.  430. 
See  People  v.  Niagara  C.  P..  4  Wend.  217;  Bates  v.  Buchanan,  2  Busli. 
(Ky.)  117;  Bemus  v.  Beekman,  3  Wend.  6fi8;  Whitwell  v.  Wells,  24 
Pick.  25;  Douglass  i;.  Garrett,  5  Wis.  85.  "  If  the  deren<lant  never  had 
poHHesHion  he  cannot  have  return,  nor  is  he  entitled  to  damage  for  the 
detention  of  goods  ho  never  h:id,"  Richardson  r.  Heed,  4  (Jray.  (Mass.  > 
443. 

'  Pickens  V.  Oliver,  29  Ala.  528. 
Washington  I<c  Co    >     WrliKicr    •;2  Me.  341. 


458  THE    LAW    OF    REPLEVIN. 

§  5iir).  Nominal  damages.  Tlie  rnlf  for  estimating  damages 
to  the  successful  party  in  replevin  is  similar  in  principle  to  that 
in  other  cases  when  there  has  been  an  invasion  of  a  right. 
Nominal  damages  at  least  are  awarded  without  proof  of  actual 
injury.  The  general  rule  is,  that  when  one  does  an  act  injurious 
to  another's  right,  which  may  be  evidence  for  the  wrong-doer  in 
the  future,  damages  may  be  awarded,  even  if  the  evidence  pre- 
dominates that  there  has  been  no  substantial  injury.^'"' 

§  5'27.  The  same.  This  rule  is  l)ased  upon  the  assumption 
that  any  interference  with  the  party's  possession,  or  right  of  pos- 
session, is  an  injury,  even  if  unaccompanied  by  actual  loss.  Its 
observance  is  frequently  of  the  utmost  importance  in  settling 
questions  of  title." 

§  528.  Party  claiming  damages  must  show  the  extent  of 
his  injuries  by  proof.  It  is  for  tln^  injured  i)arty  to  show  by 
proof  the  nature  and  extent  of  the  injury  he  has  suffered.  He 
can  in  no  case  recover  more  than  nominal  damages  without  proof 
of  the  extent  of  his  loss.''^  Simple  proof  that  the  defendant  took 
the  goods  will  not  entitle  the  plaintiff  to  more  than  nominal  dam- 
ages.'' The  same  rule  apjilies  in  trespass.  A  trespass  Avill  not 
usually  warrant  substantial  damages,  unless  some  circumstances 
of  aggravation  or  actual  injury  be  shown.*"    The  jury  are  never 

'•"  Mellor  V.  Spateman,  1  Saund.  n.  346&;  Strong  v.  Keene,  13  Irish  L. 
R.  93;  Smith  v.  Houston,  25  Ark.  184;  Cory  v.  Silcox,  6  Ind.  39.  Nomi- 
nal damages  have  been  called  "a  peg  to  hang  costs  on;  "  "A  sum  of 
money  which  has  no  quantitj'."  Maule,  J.,  in  Beammont  v.  Greathead, 
(2  M.  G.  &  S.)  52  E.  C.  L.  498.  [Plaintiff  is  entitled  to  nominal  dam- 
ages, though  the  property  demanded  is  surrendered  after  the  institution 
of  the  suit,  Cardwill  v.  Gilmore,  86  Ind.  428;  and  though  no  damages 
were  in  fact  sustained,  Robinson  r.  Shatzley,  75  Ind.  461.] 

'•Munroe  v.  Stickney,  48  Me.  462;  Devendorf  v.  Wert,  42  Barb.  227; 
Stowell  V.  Lincoln,  11  Gray,  434;  McConnell  v.  Kibbe,  33  111.  175. 
Awarded  when  defendant  had  no  title  to  property.  Champion  v.  Vin- 
cent, 20  Texas,  811;  Smith  v.  Whiting,  100  Mass.  122;  Allaire  v.  Whit- 
ney, 1  Hill,  484;  Sedgwick  on  Meas.  of  Damages,  6  Ed.  p.  55,  says: 
"  The  rule  as  to  nominal  damages  should  be  limited  to  cases  where  a 
right  is  necessarily  litigated."  A  rule  of  much  importance,  and  which 
should  be  more  generally  enforced.  There  seems  to  be  a  strong  tend- 
ency in  the  English  courts  to  discourage  suits  for  nominal  damages 
when  no  others  appear.  Williams  v.  Mostyn,  4  Mees  &  W.  145;  Young 
V.  Spencer,  10  B.  &  C.  (21  E.  C.  L.)  145. 

^Mann  v.  Grove.  4  Heisk,  (Tenn.)  403. 

^  Phenix  v.  Clark.  2  Mich.  327. 

■*"  Rose  V.  Gallup,  33  Conn.  338. 


DAMAGES.  459 

authorized  to  assess  damages  without  proof  of  their  extent,"  un- 
less it  be  in  exceptional  cases  when  facts  are  submitted  to  their 
consideration  to  estimate  under  the  order  of  the  court.^- 


"Phenix  r.  Clark,  2  Gibbs,  (Mich.)  327. 

^^  Plaintiff  proved  damages,  but  not  the  amount;  a  judgment  for  the 
defendant  was  held  error.  Under  such  proof  plaintiff  was  entitled  to 
nominal  damages,  at  least.  Brown  v.  Emerson,  18  Mo.  103.  [Dam- 
ages cannot  be  allowed  without  proof  thereof,  Norris  v.  Clinkscales, 
47  S.  C.  488,  25  S.  E.  797.  And  evidence  of  the  amount  thereof, 
Aultman  Co.  v.  Richardson.  21  Ind.  Ap.  211,  52  N.  E.  86.  The  allega- 
tions of  the  writ  are  an  admission  of  the  plaintiff  as  to  the  quantity  of 
the  goods,  but  if  made  in  mistake  they  are  not  binding,  Washington  Co. 
r.  Webster,  68  Me.  449.  The  state  of  the  market,  and  the  supply, 
are  proper  considerations,  "Washington  Co.  i\  Webster,  supra.  And 
prices  current,  obtained  from  manufacturers  or  dealers  in  the  article. 
Id.  The  jury  should  not  be  allowed  to  refer  to  their  own  knowledge 
to  determine  the  value  of  the  use  of  work  animals.  Brown  v.  Morris,  3 
Kans.  Ap.  86,  45  Pac.  98;  otherwise  as  to  the  value  of  household  goods, 
Sinamaker  v.  Rose,  62  Ills.  Ap.  118.  Offers  made  to  the  plaintiff  to 
purchase  the  thing  converted,  are  not  admissible,  Illinois  Co.  v.  Le 
Blank,  74  Miss.  650,  21  So.  760.  In  an  action  for  taking  gravel  from 
plaintiffs  lands,  the  price  paid  for  gravel  spread  on  the  streets  of  a 
particular  municipality,  there  being  no  evidence  of  the  cost  of  getting 
it  there,  is  not  admissible,  Id.;  otherwise,  if  this  omission  is  supplied; 
nor  is  such  evidence  admissible  where  the  profits  made  by  the  con- 
tractors and  the  cost  of  a  five-years'  guarantee  are  included  in  the  price 
paid.  Id.  Plaintiff  replevied  a  large  quantity  of  ice,  and  failed  in  his 
suit;  upon  the  assessment  of  defendant's  damages  he  offered,  in  order 
to  show  the  weight  of  the  ice,  a  book  kept  by  one  who  weighed  it  after 
the  replevy,  setting  down  the  several  weights  of  the  different  loads  and 
parcels;  there  was  no  evidence  that  his  scales  were  those  required 
by  the  statute,  or  that  they  had  been  sealed  as  required  by  the  statute, 
or  that  he  had  ever  been  sworn  as  a  weigher,  as  required  by  the  statute. 
The  book  did  not  contain  the  entries  of  the  general  doings  of  this  per- 
son, as  a  weigher,  but  merely  the  weights  of  this  ice;  held  it  was  no 
more  than  the  declaration.-?  post  litem  viotem  of  the  plaintiff's  employee, 
and  inatlmlsslble,  Washington  Co.  v.  Webster,  supra. 

A  witnfHH  testifying  that  great  losses  had  occurred  in  a  flock  of  8ho(>p 
committed  to  the  defendant.  It  was  held  admissible  to  -roHs  examine 
him  as  to  losses  In  other  flocks  taken  from  the  same  original  flock, 
and  In  the  rare  of  other  parties,  as  tending  to  show  that  the  loss  was 
attributable  to  the  condition  of  the  sheep  when  received  by  defendant, 
Schrandt  v.  Young,  62  Neb.  254.  80  N.  W.  10S5. 

LIve-Htock  of  the  value  of  two  thousand  dollars,  replevied  and  re- 
talnf'd  six  months;  a  large  part  of  the  herd  whs  IncreaHc  und  calves:  no 
special  damages  were  averred.     Held,  that  an  allowance  of  eight  hun- 


460  THE    LAW    OF    REPLEVIN. 

§  629.  The  same.  The  same  rule  ajiplies  when  a  return  is 
adjudged  to  defendant.  In  the  absence  of  j)roof  of  at;tual  dani- 
tiges  a  judgment  will  simply  be  entered  for  a  nominal  amount." 
When  the  jurj'  award  damages  for  detention  witliout  finding  the 
fact  of  detention,  such  award  is  erroneous.^*  AVlien  the  jury 
omit  to  find  any  damages,  judgment  therefor  cannot  be  rendered.*^ 

§  530.  Compensation  the  object  of  the  award.  The  rule 
for  ascertaining  damages  in  replevin,  when  no  fraud  or  malice  is 
involved,  is  usually  based  upt)n  the  idea  of  compensation ;  the 
object  being  to  restore  the  party,  as  far  as  pecuniary  compensa- 
tion will  do  so,  to  the  condition  he  was  in  before  the  act  com- 
plained of  was  committed.^'^ 

dred  dollars  was  excessive  upon  the  face  of  it,  Legere  v.  Stewart,  17 
Colo.  Ap.  472,  68  Pac.  1059. 

Judgment  for  damages  without  evidence  to  support  it  may  be  cured 
by  a  remittitur,  Reddinger  v.  Jones,  68  Kans.  627,  75  Pac.  997.  And  the 
court  of  review  may  order  a  remittitur,  Romberg  v.  Hughes,  18  Neb. 
580,  26  N.  W.  351.] 

"Seabury  v.  Ross,  69  111.  533. 

*^  Swain  r.  Roys,. 4  Wis.  150. 

«  Black  V.  Winterstein,  6  Neb.  225. 

"Berthold  v.  Fox,  13  Minn.  504;  Bonesteel  v.  Orvis,  22  Wis.  522; 
Stevens  v.  McClure,  56  Ind.  384;  Allen  v.  Fox,  51  N.  Y.  564;  Williams  v. 
Crum,  27  Ala.  468;  Dorsey  v.  Manlove,  14  Cal.  553.  Dicta  in  Hotchkiss 
V.  Jones,  4  Porter,  (Ind.)  260,  where  court  affirmed  judgment  in  a  fic- 
titious case  without  looking  at  record.  DeWitt  v.  Morris,  13  Wend. 
497;  Brizsee  v.  Maybee,  21  Wend.  144;  Dows  v.  Rush,  28  Barb.  157; 
Dennis  v.  Barber,  6  S.  &  R.  (Pa.)  420;  Allison  v.  Chandler,  11  Mich. 
542;  Baker  v.  Drake,  53  N.  Y.  211;  Barnes  v.  Bartlett,  15  Pick.  75; 
Gillies  V.  Wofford,  26  Tex.  66;  Wood  v.  Braynard,  9  Pick.  322;  Wood- 
burn  V.  Cogdal,  39  Mo.  222.  Such  damages  are  equivalent  for  the  injury. 
Dorsey  v.  Gassaway,  2  Har.  &  J.  (Md.)  402.  Enough  to  compensate 
party.  M'Cabe  v.  Morehead,  1  Watts  &  S.  (Pa.)  513.  Exemplary  dam- 
ages may  be  given.  Taylor  v.  Morgan,  3  Watts,  334.  Damages  which 
cannot  be  accurately  measured  should  not  for  that  reason  be  denied, 
but  the  amount  should  be  left  to  the  finding  of  the  jury.  Gilbert  v. 
Kennedy,  22  Mich.  117.  In  the  absence  of  the  elements  of  fraud,  malice, 
or  oppression,  damages  must  be  confined  strictly  to  compensation  for  the 
injury.  City  of  Chicago  v.  Martin,  49  111.  241.  Consult  Bell  v.  Cunning- 
ham, 3  Peters,  69;  Tracy  v.  Swartv.'out,  10  Peters,  81.  The  common  law 
rule  was  inflexible.  Compensatory  damages  alone  were  given.  Fidler 
V.  McKinley,  21  111.  325;  2  Bla.  Com.  438;  Sedgwick  on  Meas.  of  Dam. 
26;  Parsons  on  Contracts,  5  Ed.  164,  et.  seq.  [Plaintiff  who  prevails  is 
entitled  to  recover  all  damages  proximately  occasioned  by  the  wrong 
complained   of,   Live  Stock  Gazette  Co.   v.  Union   Co.,   114  Calif.   447,. 


DAMAGES.  461 

§  531.     How  the  amount  of  compensation  is  ascertained- 

A  question,  however,  at  once  arises,  liow  is  the  amount  of  that 
compensation  to  be  ascertained?  What  elements  enter  into  it? 
"Where  the  vahie  of  the  property  is  to  be  inchuled,  how  sliall  it 
be  found?  And  if  tlie  vahie  is  fluctuating,  Avliat  time,  between 
the  taking  and  the  final  judgment,  shall  be  selected  as  the  time 
when  the  value  shall  be  regarded  as  attaching?  When  the  goods 
have  a  fixed  and  unvarying  value,  comparatively  little  diftieulty 
arises  from  this  source ;  but  when  the  pric(?  is  constantly  chang- 
ing, the  time  which  shall  be  seized  upon  as  the  time  for  fixing  the 
value  presents  another  question. 

§  532.  When  the  goods  have  changed  in  value.  It  may 
appear  that  the  goods  may  have  been  removed  to  a  distance  from 
the  place  of  taking,  and  such  removal  may  have  enhanced  or  may 
liave  diminished  their  value.  The  transfer  may  have  been  with 
a  design  to  deprive  the  owner  of  his  property,  or  it  may  have 
been  in  ignorance  of  his  rights.  A  radical  change  may  have 
taken  i)lace  in  the  condition  of  the  jiroperty  while  in  the  defend- 
ant's possession,  before  or  pending  the  suit,  or  while  in  plaintitt"s 

46  Pac.  286.  Where  flie  defendant  gives  a  forthcoming  bond  and 
retains  the  chattels,  plaintiff  prevailing  recovers  damages  for  de- 
tention to  the  date  of  the  verdict,  Lesser  v.  Norman,  51  Ark.  301,  11 
S.  W.  281.  A  statute  that  the  plaintiff  shall  be  entitled  to  "  such 
damages  as  are  right  and  proper  "  is  not  intended  to  leave  the  measure 
of  damages  to  the  undiscriminating  sense  of  justice  and  propriety  of  a 
jury.  Hainer  v.  Lee,  12  Neb.  452,  11  N.  W.  888;  but  that  the  party  shall 
be  fully  compensated  for  the  wrong  done  him,  Schrandt  v.  Young,  62 
Neb.  254.  86  N.  W.  1085.  The  plaintiff  may  waivo  his  right  to  damages 
for  the  detention,  Williams  v.  Hoehle.  95  Wis.  510,  70  N.  W.  556.  Mort- 
gagee replevied  the  goods  under  the  Insecurity  clause  and  failed;  but 
while  he  detained  the  goods  defendant  executed  a  second  niortgago 
which  was  a  violation  of  the  conditions  of  the  first;  held,  that  the  de- 
fendant could  recover  only  for  the  detention  between  the  taking  of  the 
goods  under  the  writ  of  replevin  and  the  date  of  the  second  mortgage. 
Deal  V.  Osborne.  42  Min.  102,  43  N.  W.  835.  The  value  of  the  goods  is 
In  no  event  to  be  Included  In  the  damages  assessed  to  the  defendant, 
where  he  prevails;  the  bond  stands  In  lieu  of  these,  and  in  contempla- 
tion of  law  Ih  capable  of  causing  tboir  immediate  restoration.  Stevens  v. 
Tuitp.  104  Mass.  328.  Damages  for  <l('tentfon  are  allowed,  though  the 
gooflH  cannot  be  returned.  Schrandt  r.  Young,  supra.  Including  the 
value  of  the  use.  If  value  In  use  Is  shown.     Id. 

Ff  policy  shniild  bo  glvf-n  any  sway  In  the  aHHCBsmenl  of  diunagoB 
It  Bhoiiid  be  In  tin-  direction  of  encouraging  the  return  of  llic  property. 
Schrandt  v.  Youni^,  sujiru] 


462  THE    LAW    OF    REPLEVIN. 

possession,  upon  his  writ.  For  example,  a  colt  may  have  become 
a  hor.st',  or  it  ma}'  have  died.  Grass  may  have  been  cut  and 
stiicked,  and  the  rain  may  have  spoiled  it ;  or  any  other  of  the 
changes  incident  to  property  may  have  taken  place.  These  cir- 
cumstances necessarily  enter  into  the  estimate  of  compensation, 
and  must  be  carefully  considered  in  all  their  bearings  upon  the 
rights  of  the  parties. 

§  i^SH.  The  rule  governing  compensation  applies  only  to 
cases  where  no  malice  or  willful  wrong  is  charged.  As 
before  stated,  the  rule  which  usually  governs  the  assessment  of 
damages  in  replevin  is  based  on  the  principal  of  compensation- 
The  plaintiff,  in  his  declaration,  claims  not  only  the  goods,  but 
damages  for  the  taking  or  detention.  Upon  proof  of  such  facts, 
he  is  entitled  to  such  damages  as  will  repair  his  loss.  Tliis  rule 
is  applicable  in  all  cases  of  replevin,  where  no  malice  or  willful 
wrong  is  charged.*' 

§  ir.U.  When  taking  was  wrongful,  damages  estimated 
from  the  time  of  taking  ;  otherwise,  from  the  time  of  con- 
version. Where  the  taking  was  wrongful,  the  damages  may  be 
estimated  from  the  time  of  the  taking ;  but  where  it  was  rightful 
in  the  first  instance,  the  damages  can  only  be  estimated  from  the 
time  of  the  wrongful  conversion.  The  reasons  for  this  rule  are 
apparent.  A  rightful  possession  by  the  defendant  can  be  no  in- 
jury to  the  plaintiff;  but  a  wrongful  taking  is  i)resumed  to  be  an 
injury,  even  when  no  actual  damage  is  the  result.  If  the  taking 
was  rightful,  originally,  and  the  defendant  refuse  to  deliver,  on 
request,  his  detention  from  that  moment  is  wrongful,  and  damr 
ages  should  be  assessed  from  that  time. 

§  535.  Depreciation  in  value  a  proper  element  of  dam- 
ages. Where  the  property  diminishes  in  value  while  it  is  wrong- 
fully detained,  the  depreciation  is  usually  a  proper  element  of 
damages.**     This  rule  applies  alike  to  both  parties.     The  wrong- 

"Bonesteel  v.  Orvis,  22  Wis.  522;  Brannin  v.  Johnson,  19  Me.  362; 
Bruce  v.  Learned,  4  Mass.  614;  Whitwell  v.  Wells,  24  Pick.  33;  Allison 
V.  Chadler,  11  Mich.  542;  Baker  v.  Drake,  53  N.  Y.  212;  Warner  v.  Mat- 
thews, 18  111.  87.  Trespass  for  taking  teas;  plaintiff  entitled  to  value 
and  interest,  after  the  usual  time  of  credit  on  such  sales.  Conard  v. 
Pacific  Ins.  Co.,  6  Pet.  (U.  S.)  262;  Pacific  Ins.  Co.  v.  Conard,  1  Baldwin 
C.  C.  138.  See  Champion  v.  Vincent,  20  Tex.  811;  Bateman  v.  Goodyear, 
12  Conn.  575;   Ives  v.  Humphreys,  1  E.  D.  Smith,  196. 

*»    Hooker  v.  Hammill,  7  Neb.  231;  Frey  v.  Drahos,  7  Neb.  194;  Moore 


DAMAGES.  463 

fill  detainer  of  property  is  liable  for  its  depreciation  while  in  his 
hands/®  The  party  cannot  recover  for  the  use,  and  at  the  same 
time  have  depreciation  in  value  assessed."^'  Hut  in  Xebraska, 
the  diminution  in  vahie,  witli  the  interest  on  the  entire  value, 
was  given.''' 

§  530.  The  rule  not  uniform.  Xo  uniform  rule  can  be  given 
for  ascertaining  the  extent  of  compensation.  Ditt'erent  measures 
of  redress  may  be  proper  for  the  same  injury  suffered  under  dif- 
ferent circumstances.  What  will  make  good  the  loss  Avliieh  the 
party  has  sustained,  owing  to  the  situation  in  which  he  was  placed 
when  the  injury  was  inflicted,  is  the  material  question.  In  de- 
termining this,  all  relevant  circumstances  ought  to  be  carefully 
considered." 

§  537.  Interest  as  a  measure  of  damage.  Interest  upon 
the  value  is  fro([Ucntly  regarded  as  a  proper  measure  of  damages. 

V.  Kepner,  7  Neb.  291;  Mayberry  v.  Cliffe,  7  Cold.  (Tenn.)  117;  Gordon. 
V.  Jenney,  16  Mass.  465;  Young  v.  Willet,  8  Bosw.  (N.  Y.)  486;  Brizsee 
V.  Maybee,  21  Wend.  146. 

"Rowley  v.  Gibbs,  14  Johns.  385.  [If  plaintiff  prevails  he  may 
recover  for  any  deterioration  while  the  goods  are  in  defendant's 
possession,  Yelton  v.  Slinkard.  85  Ind.  191.  Merrill  Chemical  Co.  v. 
Nickells,  66  Mo.  Ap.  678,  Trimble  v.  Mercantile  Co.,  56  Mo.  Ap.  683, 
Renfro  v.  Hughes,  69  Ala.  581,  Crossley  v.  Hojer,  11  Misc.  57,  31 
N.  Y.  Sup.  837;  Brennan  v.  Shinkle,  89  Ills.  604.  Clow  v.  Yount.  93  Ills. 
Ap.  112,  Findlay  v.  Knickerbocker  Co..  104 'Wis.  375.  80  N.  W.  436, 
Hoester  v.  Teppe,  27  Mo.  Ap.  207.  Even  though  the  defendant  Is 
an  officer  and  has  no  claim  except  as  an  officer  and  by  virtue  of 
a  levy  of  an  execution  and  has  gone  out  of  office  pending  the 
action,  he  is  to  be  allowed  damages  for  depreciation  of  the  goods 
in  the  plaintiff's  hands,  Bowersock  v.  Adams.  59  Kans.  779.  54  Pac. 
1064.  The  allowance  is  to  be  made  whether  the  depreciation  is  from 
acts  or  neglects  of  the  defeated  party,  or  any  other  cause.  Mix  v. 
Kepner.  81  Mo.  93,  Findley  v.  Knkkerbocker  Co..  supra. 

A  rise  in  value  during  the  detention  may  be  allowed  to  the  success- 
ful defendant.  Three  States  Co.  r.  Blank,  C.  C.  A.  133  I<>d.  479.  Deck  v. 
Smith,  12  Neb.  390.  11  N.  \V.  852.  Sclinalu'l  v.  Thomas.  9S  Mo.  Ap.  197. 
71  S.  W.  1076.  But  an  Incre&se  In  tlie  markcrt:  price  for  a  short  space 
ought  not  to  aggravate  the  damages,  unless  evidence  lij  given  that  the 
owner  would  have  sold  at  that  price,  but  for  the  detention.  The  Jury 
may  allow  Intfrest.  In  their  discretion.  Meschke  v.  Van  Uoren,  16  Wis. 
319] 

"Odell  t'.  Hole.  2:,  III.  204. 

•'  Hooker  r.  Hammlll.  7  Neb.  234. 

"  Slif'pherd  v.  Johnson.  2  Kast.  211;  Berry  v.  Vantrlea,  12  S.  &  U.  94; 
BackcnHtOHH  v.  Stabler.  33  I'a.  St.  257. 


4G4  THE    LAW    OF    REPLEVIN. 

The  common  rule  is  to  allow  it  in  all  cases  upon  the  v.alue 
of  i)roperty  after  the  date  of  the  conversion,  unless  some  particu- 
lar reasons  exist  to  the  contrary.^'  "When  the  wrong  consists 
merely  in  the  detention  of  property,  (not  the  subject  of  daily  use,) 
^vithout  waste  or  depreciation,  or  in  the  compulsory  postponement 
of  the  exercise  of  the  party's  rights  under  legal  process,^'  interest  is 
allowed.  In  fact,  in  all  cases  where  damages  are  shown,  in  the 
absence  of  proof  of  some  special  damages,  or  pnnjf  that  they  were 
more  or  less  than  interest,  interest  upon  the  value  during  the 
time  the  successful  party  was  deprived  of  his  goods  will  usually 
be  regarded  as  the  only  proper  measure.''^ 

"Hamer  v.  Hathaway,  33  Cal.  119;   McDonald  v.  North,  47  Barb.  530. 

"  Beals  V.  Guernsey,  8  Johns.  446;  Hyde  v.  Stone,  7  Wend.  354;  Bissell 
V.  Hopkins,  4  Cow.  53;  Ripley  v.  Davis,  15  Mich.  75;  Robinson  v.  Bar- 
rows. 48  Me.  186;  Oviatt  v.  Pond,  29  Conn.  479;  Jones  v.  Rahilly,  16 
Minn.  322;  Derby  v.  Gallup,  5  Minn.  119;  Scott  v.  Elliott,  63  N.  C.  215. 

"  Stat,  3,  4,  W.  IV.,  Ch.  42,  §  29;  Wood  v.  Braynard,  9  Pick.  322;  N.  Y. 
Guarantee  Co.  v.  Flynn,  65  Barb.  365;  Twinam  v.  Swart,  4  Lans.  (N.  Y.) 
263;  Stevens  v.  Tuite,  104  Mass.  333;  Ormsby  v.  Vermont  Copper  Co.,  56 
N.  Y.  623;  Allen  v.  Fox,  51  N.  Y.  567;  Bartlett  v.  Briokett,  14  Allen.  64; 
Suydam  v.  Jenkins,  3  Sandf.  (N.  Y.)  614;  Huggeford  v.  Ford,  11  Pick. 
223;  Mattoon  v.  Pearce,  12  Mass.  406;  Barnes  v.  Bartlett,  15  Pick.  78; 
Caldwell  v.  West,  1  Zab.  (21  N.  J.)  411;  Bonesteel  v.  Orvis,  22  Wis.  522; 
Bigelow  V.  Doolittle,  36  Wis.  119;  Williams  v.  Phelps,  16  Wis.  80.  [In 
the  absence  of  other  damages  plaintiff  recovers  interest  on  the 
value,  Curry  v.  Wilson,  48  Ala.  638,  Hampton  Co.  v.  Sizer,  35  Misc.  391, 
71  N.  Y.  Sup.  990,  Crossley  v.  Hojer,  11  MiSc.  57,  31  N.  Y.  Sup.  837, 
Covin  V.  De  Miranda,  140  N  Y.  474,  35  N.  E.  626.  Kelly  v.  McKibben, 
54  Calif.  192,  Hanselman  v.  Kegel,  60  Mich.  540,  27  N.  W.  678.  Tucker 
Parks,  7  Colo.  65,  1  Pac.  427,  Findley  v.  Knickerbocker  Co.,  104  Wis. 
375,  80  N.  W.  436,  Saling  v.  Bolander.  GO  C.  C.  A.  469,  125  Fed.  701, 
Macon  Co.  v.  Meador,  67  Ga.  672,  Woodburn  v.  Cogdal,  39  Mo.  222,  Jack- 
son V.  Nelson,  Tex.  Civ.  Ap.  39  S.  W.  315.  In  Bonnot  Co.  v.  Neuman,  109 
la.  580,  80  N.  W.  655,  it  was  held  error  to  allow  interest  from  a  date 
prior  to  the  verdict,  unless  the  value  at  that  date  is  proven.  In  Schrandt 
V.  Young,  62  Neb.  254,  86  N.  W.  1085,  the  rule  of  damages  is  stated  as 
follows,  (1),  if  there  is  no  special  value  in  the  use,  interest.  (2),  if  the 
value  of  the  use  exceeds  interest,  then  such  value,  whether  the  goods 
are  returned  or  not,  but  no  interest,  (3),  if  loss,  depreciation  or  de- 
terioration occur  while  the  property  is  withheld,  the  amount  thereof, 
to  be  conditioned,  however,  upon  the  return  of  the  goods.  If  interest 
upon  the  value  is  allowed,  it  is  fatal  error  to  allow  even  a  nominal  sum, 
as  damages,  in  addition,  Garcia  v.  Gunn,  119  Calif.  315,  5^  Pac.  684. 
Where  bonds  are  unlawfully  detained,  the  plaintiff  prevailing  will  be 
entitled  to  lawful  interest  from  the  time  of  the  demand,  though  the 


DAMAGES.  465 

§  538.  How  assessed.  When  the  jury,  in  assessing  dam- 
ages for  defendant,  estimate  the  value  of  the  property  at  a  time 
subsequent  to  the  conversion,  they  cannot  add  to  this  value  in- 
terest from  the  time  of  conversion.^  If  interest  was  added  from 
the  time  of  conversion,  such  an  assessment  would  in  effect  amount 
to  double  damages.^'  Where  considerable  time  elapses  between 
the  verdict  and  the  rendition  of  judgment,  interest  for  that  time 
cannot  be  included  in  the  judgment.^  This  will  not  prevent  the 
judgment  from  drawing  such  interest  as  is  allowed  by  law.*®  In 
some  States  the  officer  is  authorized  to  seize  the 'property  and 
hold  it  for  a  limited  time,  to  enable  the  plaintiff  to  give  bond.  If 
the  plaintiff  fails  to  furnish  it,  the  property  must  be  returned  to 
the  defendant ;  and  where  such  is  the  case,  interest  upon  the 
value,  with  any  depreciation  or  injury  it  has  sustained,  is  proper, 
together  with  the  expense  of  re[)lacing  tlie  property.^ 

§  539.  Where  a  part  only  of  the  goods  are  found.  Where 
the  plaintiff  is  successful,  and  where  a  part  of  the  goods  sued  for 
were  not  found  by  the  officers,  and  have  not  been  delivered,  the 
plaintiff  is  entitled  to  recover  the  value  of  such  undelivered  part ; 
and  interest  upon  such  value  from  the  time  of  taking  may  also  be 
added  as  proper  damages.*' 

§  540.  In  suit  on  bond.  In  an  action  upon  the  bond  for  a 
failure  to  make  return,  when  the  property  could  have  ])een  re- 
turned but  was  not,  and  was  converted,  the  value  with  interest 
thereon  was  allowed." 

§  541.  Where  the  suit  is  concerning  the  validity  of  a  sale. 
Where  the  contest  was  about  the  validity  of  a  sale  of  personal 
property,  value  at  the  time  of  seizure,  and  interest,  was  regarded 
as  proper." 

bonds  bear  a  less  rate  of  Interest.  Covin  v.  De  Miranda,  140  N.  Y.  474,  35 
N.  E.  626,  and  see  Wegner  v.  Second  Ward  Bank,  76  Wis.  242,  44  Neb. 
1096.] 

"  Atherton  v.  Fowler.  46  Cal.  323. 

"Freeborn  v.  Norcross,  49  Cal.  313.  See  Landers  v.  George,  49  Ind. 
309. 

"  Atherton  v.  Fowler,  46  Cal.  326. 

"Hamer  v.  Hathaway,  33  Cal.  119. 

"  Morris  v.  Baker.  5  Wis.  389. 

"  Booth  V.  Ableman,  20  Wis.  602;  Graves  v.  SittiR.  5  Wis.  223:  Parlflc 
Ins.  Co.  V.  Conard.  1  Baldwin.  C.  C.  142;  Dana  i'.  Fiedler.  2  Kern.  (N.  Y.) 
40;   Brlzsee  v.  Mayhee.  21  Wend.  144;   Andrews  i'.  Durnnl.  18  N.  Y.  500. 

"  Walls  V.  Johnson.  16  Ind.  374. 

"Miller  V.  Whltson,  40  Mo.    100.     S«c,  uIho.  Woodhurn   r.   Cogdal.   39 
30 


466  THE    LAW    OF    REPLEVIN. 

§  542.  Where  defendant  is  a  stakeholder.  AVhere  the  de- 
fendant was  the  mere  stakelioUler  of  two  certified  checks  for 
:|*2,r)00  each  were  replevied,  the  verdict  was,  "  AVe,  the  jury,  find 
the  defendant  guilty,  and  that  the  property  replevied  in  said  cause, 
and  the  right  of  possession  of  the  same  is  in  the  plaintiff,  and 
we  assess  the  plaintiff's  damages  at  $G,275,"  judgment  upon  such 
a  verdict  was  erroneous.  The  only  damage  which  the  defendant 
could  in  any  event  recover  for  the  Avrongful  detention  of  the 
checks  was  the  interest  upon  the  §5,000  from  the  time  of  the  de- 
mand and  refusal  until  they  were  replevied." 

§  543.  Value  of  property,  when  allowed  as  damages. 
When  the  plaintiif  obtains  possession  of  the  property  by  the  writ, 
and  retains  it  until  the  trial,  he,  of  course,  cannot  ask  judgment 
for  its  value ;  when  the  property,  however,  is  not  delivered  pend- 
ing the  suit,  the  plaintiff,  if  successful,  is  entitled  to  a  judgment 
for  the  property  or  for  its  value ;  the  value  in  such  case,  being 
one  of  the  elements  of  damages,  should  be  found  by  the  jury.*'' 
In  like  manner,  if  the  plaintiff  has  obtained  the  property  upon 
his  writ,  and  the  verdict  is  for  the  defendant,  the  judgment 
usually  is  for  a  return  of  the  goods.  The  finding  in  such  ca.se 
should  embrace  not  only  the  damages  for  taking  and  detention* 
but  also  the  value  of  the  property,  and  the  judgment  is  for  the 
value  in  case  the  plaintiff  fails  to  make  the  return  as  ordered  by 
the  court.** 

Mo.  222;  Mayberry  v.  Cliffe,  7  Cold.  (Tenn.)  118;  Blackie  v.  Cooney,  8 
Nev.  44. 

"  Merchants'  S.  L.  &  T.  Co.  v.  Goodrich,  75  111.  559. 

•"Merrill  v.  Butler,  18  Mich.  294;  Bates  v.  Buchanan,  5  Bush,  (Ky.) 
117.  See  Gordon  ads.  Williamson,  20  N.  J.  L.  77.  The  same  results  are 
reached  in  Illinois  and  some  other  States,  when  the  count  in  trover  is 
permitted  to  be  filed  with  the  declaration,  in  replevin  for  such  goods  as 
the  officer  cannot  find  to  deliver  upon  the  writ. 

*"  Laborde  v.  Rumpa.  1  M'Cord,  15.  At  the  common  law,  when  the 
plaintiff  complained  that  the  defendant  "  still  detained  "  the  property, 
he  was  entitled  to  judgment  for  the  value  as  well  as  damages  for  the 
taking  and  detaining.  Easton  v.  Worthington,  5  S.  &  R.  (Pa.)  131; 
Frazier  v.  Fredericks,  4  Zab.  (24  N.  J.)  162;  Borron  v.  Landes,  1  Duv. 
(Ky.)  299;  F.  N.  B.  69;  Petre  v.  Duke,  Lutw.  360.  [Where  mer- 
chandise is  recovered  the  measure  of  plaintiff's  damages  is  the  value. 
Lamont  v.  Williams,  43  Kans.  558.  23  Pac.  592.  Where  the  things 
are  not  marketable  the  measure  of  damages  is  their  value  to  the  owner, 
Stickney  v.  Allen,  10  Gray,  352.  The  cost  of  replacement  is  not  the 
true  measure  of  damages  for  the  detention  of  second-band  household 


DAMAGES.  407 

§  544.  The  same.  So  when  the  defendant  retains  the  prop- 
erty by  making  claim  of  ownership,  and  giving  bond  under  the 
statute,  as  he  may  in  many  States ;  upon  a  verdict  for  the 
plaintiff,  the  jury  should  find  the  value  of  the  property,  as  well 
as  the  amount  of  damage  for  detention,  so  that  the  plaintiff  may 
have  judgment  for  the  value  in  case  the  property  is  not  delivered 
to  him.®"  When  the  plaintiff  elects  to  proceed  without  asking 
delivery  of  the  goods  pending  the  suit,  as  he  may  do  under  some 
of  our  State  stiitutes,  in  case  he  succeeds,  the  judgment  is  for  the 
delivery  of  the  property  to  him,  or  the  payment  of  its  value. 
And  where  his  petition  asks  for  damages  for  detention,  he  may 
prove  the  value  of  the  property  as  a  proper  element  of  damages 
to  be  awarded  him,  the  action  in  such  case  being  in  the  nature  of 
trover.*^  In  each  of  these  cases  the  judgment  is  in  the  alterna- 
tive, for  the  propert)^  or  in  case  it  cannot  be  had,  for  its  value. 
These  rules  cannot  be  said  to  be  universal  in  their  application.  In 
some  of  the  States  the  judgment  is  for  the  property  or  its  value, 
at  the  option  of  the  party  in  whose  favor  it  is  rendered.  In  the 
absence  of  local  laws  or  practice  to  the  contrary,  the  principles 
stated  will  api)ly. 

§  545.  When  value  is  regarded  as  attaching.  The  fore- 
going sections  may  to  some  extent  be  a  guide  as  to  when  the  value 
is  allowed  to  enter  into  the  question  of  damagt's  ;  and  that  having 
been  settled,  the  question  arises,  when  shall  the  value  be  regarded 


goods,  Burchinell  v.  Butters,  7  Colo.  Ap.  294,  43  Pac.  459.  Where  the 
goods  were  sold  by  the  sheriff  under  execution  against  a  stranger, 
pending  the  replevin,  it  was  held  proper  to  award  the  plaintifT  the 
amount  of  the  bid  at  that  sale,  Leonard  v.  MoGinnis,  34  Minn.  500,  26 
N.  W.  733.  But  anomalous  sales,  not  in  the  ordinary  course  of  business, 
are  not  controlling;  market  value  signifies  a  price  established  by  sales 
in  the  way  of  ordinary  business.  Meixell  v.  Kirkpatrick,  33  Kans.  282, 
G  Fac.  241.  The  owner  of  goods  is  not  under  any  duty  to  sell  the  whole 
to  any  one  purchaser,  and  an  instruction  that  the  measure  of  damages 
is  a  fair  price,  upon  such  a  snh'.  is  properly  refused,  Washington 
Co.  V.  Webster,  68  Me.  449.  The  plaintiff  recovers  the  value  only  where 
the  goods  have  been  retained  by  the  defendant.  LIndaucr  v.  Teeter,  41 
N.  J.  L.  255.  Where  the  quality  of  the  good.s  is  not  shown,  the  defend- 
ant convicted  of  the  unlawful  detention  cannot  compluln  if  they  are 
aesumed  to  be  of  the  best,  Curry    r.  WIIhou.  4K  Ala.  638. J 

•' Krazier  v.  KrederlckH.  4  Zab.  (  N.  J.)  102;  Kield  v.  Post.  9  Vroom, 
(N.  J.)  346. 

••  Pugh  V.  Calloway,  10  Ohio  St.  48K. 


4G8  THE    LAW    OF    REPLEVIN. 

as  attaching.     What  point  in  tlie  history  of  the  di.spute  shall  be 
seized  upon  as  the  moment  when  the  vahie  shall  be  lixed. 

§  546.  Value  at  the  time  of  conversion.  A  large  number 
of  eases  hold  that  the  value  at  the  time  of  the  conversion,  or  at 
the  time  the  delivery  was  refu.sed,  together  with  interest,  is  the 
proper  rule."'     This  question  is  exhaustively  discussed  in  Whit- 

~  Jacoby  v.  Lanssatt,  6  S.  &  R.  (Pa.)  300;  Ormsby  v.  Vermont  Copper 
Co.,  56  N.  Y.  623;  Otter  v.  Williams,  21  111.  118;  Whitfield  v.  Whitfield, 
40  Miss.  352;  Greer  v.  Powell,  1  Bush.  (Ky.)  489;  Keaggy  v.  Hite,  12 
111.  99;  Robinson  v.  Barrows,  48  Me.  186;  Kennedy  v.  Whitwell,  4  Pick. 
466;  Greenfield  Bank  v.  Leavitt,  17  Pick.  1;  Parsons  v.  Martin,  11  Gray, 
(Mass.)  Ill;  Pierce  i'.  Benjamin,  14  Pick.  356;  Riply  v.  Davis,  15  Mich. 
75;  Kennedy  v.  Strong,  14  .Johns.  128;  Bell  v.  Bell,  20  Geo.  250;  Spicer  v. 
Waters.  65  Barb.  227;  Hendricks  v.  Decker.  35  Barb.  298;  Liliard  v.  Whit- 
aker,  3  Bibb.  (Ky.)  92;  Sproule  v.  Ford,  3  Litt.  (Ky.)  26;  Baltimore  Ins. 
Co.  V.  Dalrymple,  25  Md.  269;  Gushing  v.  Longfellow,  26  Me.  307;  Shep- 
herd V.  Johnson,  2  East.  211;  Davies  v.  Richardson's  Ex'rs,  1  Bay.  (S. 
C. )  102;  Kipp  V.  Wiles,  3  Sandf.  585.  The  expense  of  teams,  etc.,  to  re- 
move the  property,  may  become  part  of  the  damages.  Washington  Ice 
Co.  V.  Webster,  62  Me.  361.  In  a  suit  for  damages  to  a  defendant  when 
there  was  no  malice,  the  value  of  the  property  at  the  time  it  was  re- 
plevied was  held  to  be  the  proper  rule.  Berthold  v.  Fox,  13  Minn.  507; 
Garrett  v.  Wood,  3  Kan.  231.  In  trespass,  the  value  at  the  time  the  tres- 
pass was  committed,  Gilson  v.  Wood,  20  111.  37.  When  the  form  of  the 
,  action  is  assumpsit,  for  money  had  and  received,  the  plaintiff  can  only 
recover  the  sum  received,  not  the  value  of  the  goods.  Rand  v.  Nesmith, 
61  Me.  Ill;  Rowan  v.  St.  Bank,  45  Vt.  160.  When  the  plaintiff  was  as- 
signee of  goods  seized  by  the  sheriff,  on  execution,  and  must  have  sold 
them  if  they  had  come  to  his  hands,  the  jury  could  properly  ascertain 
the  price  at  which  they  were  sold  by  the  sheriff  at  auction,  as  the  true 
measure  of  damages.  Whitehouse  v.  Atkinson,  3  Car.  &  P.  (14  E.  C.  L.) 
344.  [The  value  is  to  be  assessed  as  of  the  date  of  the  taking,  Findley 
V.  Knickerbocker  Co.,  104  WMs.  375,  80  N.  W.  436;  Dodge  v.  Runels,  20 
Neb.  33,  28  N.  W.  849;  Honaker  v.  Vesey,  57  Neb.  413,  77  N.  W.  1100; 
Washington  Co.  v.  Webster,  68  Me.  449;  Woodburn  v.  Cogdal,  39  Mo.  222; 
Miller  v.  Whitson,  40  Mo.  97;  Boylan  v.  Huguet,  8  Nev.  345;  Conner  v. 
Hillier,  11  Rich.  S.  C.  193;  Stuart  v.  Phelps,  39  la.  14;  Hall  v.  Tillman, 
110  N.  C.  220,  14  S.  E.  745.  If  there  be  no  established  market  price  at 
the  place  and  time  of  the  taking  recourse  may  be  had  to  sales  nearest 
in  point  of  time  and  place,  Washington  Co.  v.  Webster,  supra.  In 
Missouri  the  value  is  assessed  as  of  the  date  of  trial,  Merrill  Co.  v. 
Nickells,  66  Mo.  Ap.  678;  Chapman  v.  Kerr,  80  Mo.  158.  In  the  case 
of  goods  of  fluctuating  value  the  rule  has  obtained  in  some  courts  of 
allowing  the  highest  market  value  between  the  time  of  the  conver- 
sion and  the  institution  of  the  suit;  but  this  rule  seems  now  generally 
abandoned,  3  Suth.  Dam.  496-509.     Where  the  action  is  for  a  marketable 


DAMAGES.  469 

Jieldx.  Whitfield,  40  ^Nlisc.  352,  where  all  the  leading  authorities 
on  the  subject  are  considered,  and  the  court  concludes  its  discus- 
sion :  ''  From  the  examination  which  we  have  been  able  to  give 
to  this  question,  we  think  that  may  be  safely  affirmed:  1.  That 
in  actions  for  taking  and  detaining  personal  property,  where  no 
question  of  fraud,  malice,  oppression  (or  willful  wrong,  either  in 
the  taking  or  detention,)  intervenes,  the  measure  of  damages  is 
the  value  of  the  property  at  the  time  of  the  taking,  or  conver- 
sion, or  illegal  detention,  with  interest  thereon  to  the  time  of 
trial ;  and  this  is  a  rule  of  law  to  be  decided  by  the  court.  2. 
That  where  the  trespass,  detention  or  conversion  is  attended  by 
circumstances  of  malice,  fraud,  oppression,  or  willful  wrong,  the 
law  abandons  the  rule  of  compensation,  in  a  legal  sense,  and  the 
measure  of  damages  becomes  a  matter  for  the  consideration  of  tlie 
jury,  guided  by  the  evidence  before  them.  That  under  the  first 
rule  stated  may  be  embraced  all  cases  where  the  defendant, 
neither  in  the  taking  nor  in  the  detention  or  disposition  of  the 
property,  has  been  guilty  of  any  willful  wrong,  but  acts  in  good 
faith,  and  with  no  intent  injuriously  to  atfect  plaintiff's  rights. 
That  under  the  second  rule  above  stated  may  be  einl)raeed,  1,  all 
cases  where  the  original  act  was  willful  and  wrongful ;  2,  or 
where  the  original  act  was  io//^/_AVA',  but  the  subsequent  detention, 
.sale,  or  other  disposition  of  the  property,  after  a  knowledge  of 
plaintiff's  claim,  was  willful  and  injurious  ;  3,  or  where  the  orig- 
inal act,  and  suljsequent  disposition  of  the  property  for  a  greater 
price  than  its  market  value,  at  the  time  of  the  original  taking 
were  all  in  ignorance  of  the  plaintiff's  rights,  but  the  defendant 
seeks  to  retain  the  difference,  as  a  speculation  resulting  from  his 
original  unintentional  wrong ;  4,  or  where  the  property  in  con- 
troversy has  some  peculiar  value  to  the  plaintiff',  and  is  willfully 
witlih»dd  from  the  rightful  owner,  or  he  has  been  deprived  there- 
of Ijy  the  willful  and  wrongful  act  of  the  defendiinl.  In  all  such 
cases  it  is  the  peculiar  province  of  the  jury  to  find  such  d;iinage.s, 
according  t<j  the  convictions  of  their  own  understandings,  iis  an^ 
consistent  with  right;  not  as  a  matter  of  law,  uniler  tlu;  control 
and  direction  of  the  couit,  but  as  a  rule  of  remi;dial  justice,  rest- 
ing in  their  discretion." 

f-ommodlty  and  dof(?n<lant  prevails,  he  r«'< ovi  th  (ho  market  value  on  tho 
day  of  the  trial;  but  the  ijlulritifT  unleHH  he  appearH  to  have  acted  wil- 
fully will  he  allowerl  for  preparlriK  the  thInK  for  Halt'  and  conveying  It  to 
market.  Clement  v.  Duffy,  G4  la.  03;:.  7  N.  W.  8[..j 


470  THE    LAW    OF    REPLEVIN. 

§  547.  The  same.  In  England,  tlie  statute,  3  and  4  W.  IV. 
c.  42,  §  29,  allows  interest  upon  the  value  of  the  property  at  the 
time  of  the  seizure  or  conversion,  and  indicates  the  conversion  as 
the  time  at  which  the  value  should  be  fixed.  This  is  the  rule 
laid  down  in  many  well  considered  cases  in  this  country.'"  Where 
the  plaintiff  was  non-suited,  the  defendant  was  entitled  to  interest 
upon  the  value  of  the  goods  from  the  date  of  replevin."  The 
same  principles  apply  in  trover."- 

§  548.  This  rule  applicable  when  the  value  of  the  prop- 
erty is  stable  ;  rule  when  the  value  varies.  The  rule  which 
estimates  the  value  at  the  time  of  conversion,  with  intersst  from 
that  date,  is  equitable  in  cases  where  the  value  is  stable.  But 
when  the  value  is  changing,  the  rule  would  work  unjustly  in 
many,  probably  a  majority,  of  cases ;  for  instance,  a  wrongful 
taker  could  select  the  time  when  property  was  low,  and  derive  a 
profit  by  seizing  and  disposing  of  it ;  therefore,  where  the  value 
is  changing,  some  other  more  eiiuitablc  mctluxl  nuist  be  de- 
vised. 

§  549.  The  highest  value  after  taking  and  before  trial. 
Many  cases  regard  the  highest  value  between  the  time  of  conver- 
sion and  trial,  as  the  proper  one  to  be  fixed."  JSIarkluun,  \.Jaudon, 
41  N".  Y.  (Hand.)  235,  was  a  case  where  the  plaintifl:'  furnished  a 
margin  for  the  purpose  of  buying  stocks,  and  the  defendant,  with 
ten  per  cent,  of  plaintiff's  money  and  ninety  per  cent,  of  his  own, 
purchased  the  stocks  for  plaintiff.  Defendant  sold  the  same 
without  orders,  and  the  court,  following  the  principles  laid  down 
in  the  cases  last  cited,  gave  damages  at  the  highest  prices  after 
conversion  and  before  judgment.     This  case  has  been  cited  and 

'"  Yater  v.  Mullen,  24  Ind.  277.  What  it  would  take  to  replace  the 
goods  was  held  to  be  the  measure  of  damages;  in  Starkey  v.  Kelly,  50 
N.  Y.  676.  The  value  of  the  property  at  the  time  it  should  be  restored; 
in  Swift  V.  Barnes,  16  Pick.  196.  The  damages  not  governed  by  any 
fixed  rule,  but  arbitrary,  and  to  be  estimated  by  the  jury  in  view  of  all 
the  circumstances.  Jones  v.  Allen,  1  Head.  (Tenn.)  626.  The  value 
with  interest  from  the  time  of  the  conversion;  Greenfield  Bank  v. 
Leavitt,  17  Pick.  3. 

"'Wood  V.  Braynard,  9  Pick.  322;   Barnes  v.  Bartlett,  15  Pick.  78. 

"  Barnes  v.  Bartlett,  15  Pick.  78. 

"  Cortelyou  v.  Lansing,  2  Cain's  Ca.  200;  Barnett  v.  Thompson,  37 
Geo.  335;  Burt  v.  Butcher,  34  N.  Y.  493;  Markham  v.  Jaudon,  41  N.  Y. 
(Hand.)  239;  Morgan  v.  Gregg,  46  Barb.  183;  Wilson  v.  Mathews,  24 
Barb.  295;  Romain  v.  Van  Allen,  26  N.  Y.  309. 


DAMAGES.  471 

followed  in  a  number  of  others.  And,  although  the  soundness  of 
the  rule  has  been  affirmed  as  a  general  principle,  its  universal  ap- 
plication has  been  denied. 

§  550  The  same.  In  JLitf/ieics  v.  Coe,  49  X.  Y.  57,  Church, 
Ch.  J.,  said:  "An  unqualified  rule,  giving  the  plaintiff  the  highest 
price  between  the  conversion  and  the  time  of  trial,  cannot  be 
upheld  on  any  principle  of  reason  or  justice."  In  Baker  y.  Drake, 
53  X.  Y.  213,  the  court  said  :  "  The  rule  laid  down  in  Markham 
V.  Jaudon,  has  been  recognized  in  several  cases  where  the  value 
of  the  property  was  fluctuating,  but  its  soundness  as  a  general 
rule  has  been  seriousl}'  questioned  and  denied  in  various  cases."  '* 
The  court  there  reviewed  and  examined  a  number  of  leading  cases 
upon  this  subject,  and  concluded  that  the  principles  laid  down  in 
Markham  v.  Jaudon  were  not  to  be  regarded  as  settled  rules  to 
which  the  principle  of  stare  decisis  should  apply." 

§  551.  The  same.  Observations  upon  the  rule.  It  may, 
however,  safely  be  said  that  this  rule,  though  somewhat  cir- 
cumscribed, continues  to  be  a  very  general  and  necessary  rule, 
Jlaftheirs  V.  Coe,  and  Baker  v.  Drake,  supra,  only  limiting  or 
directing  the  application,  but  not  superseding  the  rule.'" 

§  552.  The  same.  In  detinue  for  shares  of  stock  which  had 
been  delivered  to  the  plaintitf  after  suit  was  brought,  the  prop- 
erty was  worth  £3  5.s.  when  demanded,  and  £1  at  the  time  of 
delivery.  This  difference  the  plaintiff  was  allowed  to  recover.'' 
In  trover,  the  jury  are  not  limited  to  any  precise  time,  but  may 
fix  the  value  at  any  time  between  the  demand  and  judgment.'" 
If  at  the  time  the  return  is  ordered,  the  property  had  increased  in 
value,  the  defendant  would  be  entitled  to  any  increase  that  oc- 
curred, as  the  goods  are  his;  if  it  had  diiiiiiiislu'd,  (lie  loss  ought 


"Baker  v.  Drake,  66  N.  Y.  518. 

"See  Morgan  v.  Jaudon.  40  How.  Pr.  3GG;  Stewart  v.  Drake,  Jii  N.  Y. 
449. 

"Hamer  v.  Hathaway.  33  Cal.  119;  Douglass  r.  Kraft,  9  Cal.  563; 
West  V.  Wentworth.  3  Cow.  82;  Allen  v.  Dyker.s.  3  Hill.  593;  Hint  r. 
Bolreau.  3  Comst.  85;  Lolnlell  v.  Stowell.  51  N.  Y.  77;  WlUard  v.  Bridge. 
4  Barb.  361;  Wilson  r.  Mathews.  24  Barb.  295;  Commenial  Bank  v. 
Kortrlght.  22  Wend.  348;  Kortrlght  v.  Com.  Bunk,  20  Wend.  91. 

"Williams  V.  Archer,  5  M.  G.  &  S.  318.  See  Archer  v.  Willlnms.  2 
Carr.  &  K.  (61  E.  C.  L.)  26;  Barnett  v.  Thompson.  37  Geo.  335;  Morgan 
V.  Gregg.  46  Bar.  183. 

''Joiinson  V.  Marshall.  34  Ala.  G28. 


472  THE    LAW    OF    REPLEVIN. 

to  fall  upon  the  plaintiff,  as  he  wrongfully  interfered  with  the 
defendant's  posscssiDn,  and  thus  oei'asioned  it."' 

§  558.  Qualincations  of  the  rule  ;  suit  must  be  brought 
within  a  reasonable  time.  This  rule  allowing  the  highest 
market  price  at  any  time  after  the  taking  and  before  judgment, 
is  without  doubt  sustained  by  a  large  number  of  the  cases  in  this 
country  and  England,  prior  to  the  statute  3  and  4  W.  IV.  c.  42, 
§  29.  The  rule,  however,  nuist  be  taken  with  this  qualification, 
that  the  suit  must  be  brought  within  a  reasonable  time,  and  its 
trial  urged  with  all  reasonable  diligence.  The  plaintiff  has  no 
right  to  wait  until  the  period  of  limitation  is  about  to  expire,  nor 
to  delay  his  suit  for  the  purpose  of  having  a  longer  time  within 
which  to  compute  damages.  It  is  a  rule  of  doul>tful  justice,  said 
the  court,  to  give  the  plaintiff  the  whole  jieriod  of  the  statute  of 
limitations  within  which  to  select  his  standard  of  value."'* 

§  554.  The  same.  This  question  arose  in  California  upon 
the  replevin  of  hay  taken  in  18G3,  when  it  was  worth  three  to  five 
dollars  per  ton.  The  trial  was  in  18G9.  The  defendant  proved 
that  in  18G4  it  was  worth  thirty-eight  to  forty  dollars  per  ton. 
The  court,  in  discussing  the  case,  said  :  "  If  a  quantity  of  fruit, 
strawberries,  for  instance,  be  taken  in  the  season  of  the  greatest 
plenty,  under  circumstances  which  entitle  the  owner  to  indemnity 
only,  and  suit  began  at  once  to  recover  the  value,  trial,  in  the 
ordinary  course  of  events,  could  not  take  place  for  many  months. 
In  the  meantime  the  season  of  plenty  has  passed  and  the  price 
has  ri.sen  enormously,  and  under  the  rule  allowing  the  highest 
prices  the  plaintiff  could  recover  the  enhanced  value  which  he 
could  by  no  possibility  have  realized  himself."  Under  this  con- 
struction the  plaintift'  received  a  verdict  for  $25,763  for  property 
not  worth  more  than  $2,500  when  it  was  taken.  When  we 
consider  that  the  object  to  be  attained  is  indemnity  for  losses 
actually  sustained,  this  result  is  startling.  The  court  then  follows 
the  rule  laid  down  in  Scott  v.  Rogers,  supra,  and  says  the  correct 
measure  of  damages  is  the  highest  market  price  within  a  reasonable 
time;"'  and  this  agrees  with  the  rule  in  Cannon  v.  Fohon,  2 
Iowa,  101,  where  many  cases  were  cited,  and  with  Pinkerton  v. 
Railroad,  etc.,  42  N.  H.  424. 

™  Washington  Ice  Co.  v.  Webster,  62  Me.  341;   Mayberry  v.  Cliffe,  7 
Cold.  (Tenn.)  124. 
»"  Scott  V.  Rogers,  31  N.  Y.  678. 
"  Page  V.  Fowler,  39  Cal.  416. 


DAMAGES.  473 

§  555.  What  is  highest  market  value.  The  rule  is  also 
subject  to  the  following-  addiliunal  qualiticatiou,  that  the  term 
"  highest  market  value "  embraces  only  such  changes  in  the 
market  as  are  due  to  the  ordinary  commercial  causes.  A  sudden 
panic,  or  unusual  excitement,  or  conspiracy  among  dealers,  may 
give  any  article  of  merchandise  a  speculative  but  purely  fictitious 
value.  Such  prices  ought  not  to  be  taken  into  consideration  by 
the  courts  in  ascertiiining  values  or  damages  to  be  awaided  to 
contending  suitors."*  By  "the  highest  market  value,"  as  used  in 
this  connection,  the  law  also  contemplates  the  range  of  the  entire 
market  and  an  average  of  prices  running  through  a  reasonable 
period  of  time,  not  any  sudden  or  transient  inflation  or  depres- 
sion resulting  from  causes  independent  of  the  operation  of  lawful 
commerce."' 

§  556.  Further  qualification  of  the  rule.  The  rule  is  sub- 
ject  to  the  further  limitation  that  tiie  party  nuist  sliow  himself 
to  be  the  owner  of  the  property  for  which  he  claims  such  dam- 
ages. For  example,  the  plaintiff  put  up  a  margin  and  directed 
the  defendant  to  purchase  stocks,  which  the  defendant  afterwards 
sold  without  plaintilfs  consent.  Here  the  speculation  was  carried 
on  with  the  defendant's  money.  If  the  plaintih"  had  had  the 
chance  of  profit,  he  was  subject  also  to  the  chance  of  a  decline, 
which  he  avoided  ;  he  was  also  subject  to  the  chance  of  his  not 
availing  himself  of  the  use  of  the  rise  at  the  proper  moment, 
which  is  no  inconsiderable  element,  and  the  fact  exists  that  if  the 
stocks  had  risen  he  would,  perhaps,  have  been  unable  to  make 
further  advances  to  hold  them.  The  value  of  the  stocks  in  such 
case  would  be  impro[)cr.  The  proper  cour.se  would  have  been  for 
the  plaintilf,  on  being  notified  of  the  sale,  to  have  signified  his 
disapproval  and  directed  the  defendant  to  replace  the  sU)ck.s,  and 
if  he  had  not  done  so,  the  plaintilf  might  have  then  bought  the 
aUyck  and  charged  him  with  th(^  loss  in  so  doing.  'I'he  cir- 
cumstances of  a  case  like  this  will  not  warrant  the  transfer  of  all 
the  chances  of  loss  to  the  defendant,  holding  him  responsible  for 
all  jKJssiljle  (•hanees  of  gain,  and  making  him  an  insiner  that  the 
plaintiff  would  have  made  that  gain."*  N\' here  the  goods  are  of 
a   kind   that   varies   in  (|Uality,  an<l   one  party,   by   any    artifice, 

"Mayberry  v.  CHffp,  7  Cold.   (Tenn.)    121. 

"Snillh  r.  r;rimtliK.  3  Hill.  333;   DiirHt  t-.  Hiirton.  47  N.  Y.  175. 

"  Baker  r.  Urake,  :/i  N.  Y.  211.     See  Bume  caae,  GO  N.  Y.  518. 


474  THE    LAW    OF    REPLEVIN. 

deprives  the  other  fn)m  showing  tlio  reul  quality,  the  presump- 
tion as  to  (luality  will  be  against  the  party  who  practices  the 
fraud /^ 

§  557.  Measure  of  damages  in  suit  for  a  note  or  bill. 
The  measure  of  dainages  in  a  suit  for  a  bill  or  note  seems  to  be, 
prima  facie,  the  amount  of  the  bill  or  note;  the  defendant, 
however,  may  give  in  evidence  the  insolvency  of  the  maker,  or 
any  payment  made  on  it,  or  any  other  facts  showing  the  real 
value  of  the  instrument,  or  that  the  actual  damages  were  less."* 

'^Bailey  v.  Shaw,  4  Foster,  (N.  H.)  301. 

"*  Potter  V.  Merchants'  Bank,  28  N'.  Y.  641;  Am.  Ex.  Co.  v.  Parsons,  44 
111.  318;  Keaggy  v.  Hite,  12  111.  99;  Menkens  v.  Menkens,  23  Mo.  252; 
Ingalls  V.  Lord,  1  Cow.  (N.  Y.)  240;  Robbins  v.  Packard,  31  Vt.  570. 
[The  measure  of  damages  for  the  conversion  of  negotiable  bonds,  is  the 
market  value,  Loomis  v.  Stave,  72  Ills.  623.  Stock  sold  without  au- 
thority could  have  been  replaced  any  time  within  thirty  days  at  the 
same  price  at  which  it  was  sold;  plaintiff  had  paid  nothing  upon  it; 
held,  he  was  entitled  only  to  nominal  damages,  Colt  v.  Owens,  90  N.  Y. 
368,  distinguishing  Baker  v.  Drake,  53  N.  Y.  211,  13  Am.  Rep.  507, 
where  it  is  held  that,  whatever  may  be  the  form  of  the  action,  if  stocks 
have  been  paid  for,  all  fluctuations  of  the  market  are  at  the  risk  of  the 
vendor  who  refuses  to  deliver  while  retaining  the  purchase  money. 
But  in  Meixell  v.  Kirkpatrick,  29  Kans.  G79,  the  measure  of  damages  is 
held  to  be  the  difference  between  the  market  value  and  what  the  plain- 
tiff had  contracted  to  pay.  The  face  value  of  municipal  bonds  is  deemed 
the  market  value  in  absence  of  evidence  to  the  contrary,  Meixell  v. 
Kirkpatrick,  supra.  The  measure  of  damages  for  the  conversion  of 
stock  is  the  market  value  of  the  stock  on  the  day  of  conversion, 
Brewster  v.  Van  Liew,  119  Ills.  554,  8  N.  E.  842,  Seymour  v.  Ives,  46 
Conn.  109,  Anderson  v.  Nicholas,  28  N.  Y.  600.  Jarvis  endorsed  land 
script  in  blank  to  Russell  to  secure  five  hundred  dollars,  and  Russell 
delivered  it  so  endorsed  to  Rogers,  to  secure  one  thousand  dollars; 
Rogers  took  without  notice  of  the  rights  of  Jarvis;  Jarvis'  administra- 
tor was  held  entitled  to  recover  of  Rogers  the  value  of  the  scrip  less 
the  two  sums  for  which  it  had  been  pledged,  Jarvis  v.  Rogers,  15  Mass. 
389.  Prima  facie,  the  measure  of  damages  for  the  conversion  of  a 
promissory  note  is  the  principal  and  interest  unpaid  at  the  date  of  con- 
version, with  interest  from  that  date  to  the  trial.  Holt  v.  Van  Eps,  1  Dak. 
206,  46  N.  W.  689;— so  for  a  check,  Haas  v.  Altieri,  2  Misc.  252,  21  N.  Y. 
Sup.  950.  But  it  may  be  shown  that  its  actual  value  is  less.  Trover 
for  a  promissory  note  paid  and  left  in  the  payee's  hands;  the  note  was 
produced  and  surrendered  at  the  trial,  pl&intiff  vv^as  allowed  only 
nominal  damages.  Stone  v.  Clough,  41  N.  H.  290.  Action  by  depositor 
against  a  savings  bank  to  recover  his  pass  book;  the  measure  of  his 
damages  is  tne  amount  of  his  deposit,  with  interest  at  lawful  rate  from 
the  time  of  the  demand,  notwithstanding  the  bank's  deposits  draw  a 


DAMAGES.  475 

If,  however,  defendant  has  done  any  act  to  diminish  the  vahie,  if 
he  has  mutilated  the  note  or  erased  a  signatui-e  from  it,  such 
decrease  in  value,  instead  of  being  allowed  in  mitigation  of  dam- 
ages, must  be  made  good  by  the  party  Avho  caused  it ;  "^  and,  as  a 
rule,  nothing  done  by  the  defendant  while  the  goods  are  in  liis 
wrongful  possession  can  avail  him  tt)  reduce  the  damages  for 
which  he  may  be  liable.*®  So,  if  the  defendant  has  received  a 
payment,  and  endorsed  it  upon  the  note,  such  endorsement  is  no 
ground  to  reduce  the  value.  Bringing  the  money  into  court  for 
the  plaintiff,  or  restoring  the  note,  will  go  to  decrease  the  damages."' 

§  558.  The  same.  Probably  the  most  concise  statement  of 
the  rule  generally  a])plicable  in  such  cases  is  that  the  measure  of 
damages  is  the  value  of  the  note,  not  necessarily  the  amount  due, 
or  purporting  to  be  due  upon  it.*"  "When  the  ])laintiff  put  a  city 
order  into  hand  of  parties  to  investigate  a  fraud  in  its  issue,  and 
they  refused  to  return  it,  he  was  entitled  to  recover  from  them 
its  full  value ;  as  it  could  not  be  collected  from  the  city,  he  was 
not  entitled  to  its  face  value.*' 

§  559.  The  same.  A  bankrupt  gave  a  check  to  one  of  his 
creditors,  which  was  paid  by  the  bank  upon  which  it  was  drawn. 
The  assignee  brought  trover  and  obtained  a  verdict  for  the  full 
amount  of  the  check.  The  action  was  based  upon  the  fact  tluit 
the  check  was  drawn  l)y  the  bankrupt  without  authority,  his 
property  belonging  to  his  assignee.  The  verdict  was  set  aside. 
Maxsfield,  C.  J.,  said,  "the  plaintiff  proceeds  on  the  ground 
that  the  check,  being  drawn  by  a  bankrupt,  was  worthless.  If 
tlie  position  taken  be  true,  how  can  he  recover  £800  on  it.'"" 

§  560.  The  value  of  coin  sometimes  estimated  in  cur- 
less  rate.  Wegncr  v.  Second  Ward  Bank,  Tfi  Wis.  242.  44  N.  W.  1096; 
and  see  Govin  v.  DeMiranda,  140  N.  Y.  474.  33  N.  E.  626.  PlaintifT  in 
replevin  for  a  deed  of  lands  will  not  recover  the  value  of  the  lands, 
Flannigan  v.  GoBglns.  71  Wis.  28,  36  N.  W.  846.  I.*tters  from  those 
since  deceased  are  not  to  be  valued  by  consideration  of  what  might  be 
made  of  them  for  the  purpose  of  levying  black-mail.  Donohue  v.  Henry, 
4  E.  D.  Sra.  162.] 

"Mcleod  V.  McGhie.  2  M.  &  G.  (40  E.  C.  L.)  Z2<\;  Am.  Kx.  Co.  v. 
Parsons.  44  III.  318. 

"Carter  v.  Streator,  4  Jones,  (N.  C.  L.)  62. 

•Alsayer  v.  Close,  10  Mees.  &  W.  576. 

••Turner  v.  Retter.  r,8  111.  264. 

•'Terry  v.  AUIh,  16  Wis.  47'.t;   Terry  v.  Allls.  20  Wis.  32. 

"Mathew  v.  Sherwdl,  2  Taunt.    l.'J'.t. 


476  THE    LAW    OP^    REPLEVIN. 

rency.  Coin  ni;iy  at  times  be  regarded  as  an  article  of  mer- 
chandise, upon  wiiieli  a  market  value  may  he  placed  in  ordinary 
currency.  In  such  a  case,  it  was  said  that  the  measure  of  dam- 
ages for  its  non-delivery  was  properly  fixed  hy  estimating  its 
value  in  currency  at  the  highest  price  between  the  time  of  taking 
and  the  trial.''^  When  the  property  in  controversy  was  a  billiard 
table,  the  plaintiff  offered  proof  that  it  was  worth  1500  in  g(jld 
coin,  and  proved  its  value  in  legal  tender  or  greenbacks,  (to  which 
an  objection  was  made,)  at  §1,200.  The  court  permitted  the 
evidence,  and  sustained  a  verdict  for  $950."* 

§  501.  Damages  occasioned  by  party's  own  act  not 
allowed.  No  one  should  be  permitted  to  ri>cover  damages  which' 
are  occasioned  by  his  own  act,  neglect  or  default.  When  the 
plaintiff  failed  to  give  the  proper  bond,  and  to  take  possession  of 
the  property  described  in  his  writ,  he  could  not  recover  damages 
for  any  deterioration,  or  for  the  detention  while  it  was  in  the 
hands  of  the  officer,  through  his  neglect  to  furnish  the  security 
required  by  law.^^ 

§  562.  The  place  where  the  value  is  considered  as  at- 
taching. The  place  where  the  value  is  to  be  considered  as 
attaching  is  sometimes  a  question  of  considerable  importance ;  as 
in  cases  where  the  property  is  taken  or  detained  at  a  point 
distant  from  any  market  for  such  articles,  where,  perhap.s,  it 
could  not  be  sold  at  any  price,  or,  if  sold,  it  would  be  at  a  ruinous 
sacrifice,  while  at  a  neighboring  market  a  fair  price  might  be 
o1>tained  ;  or  where  the  property  may  have  been  taken  at  a  place 
where  there  was  no  market  for  it,  and  by  the  taker  transported 
at  great  cost,  and  sold  at  a  price  sufficient  to  pay  not  only  the 
cost  of  transportation,  but  a  fair  profit  upon  the  article.  In  all 
such  cases  it  becomes  a  question  of  no  little  difficulty  to  determine 
Avhich  value  shall  be  regarded  as  attaching  to  the  property,  the 
value  at  the  place  of  taking,  or  at  the  distant  market,  and  also 
whether  the  costs  of  transporting,  when  such  costs  have  been 
incurred  by  the  taker,  shall  be  deducted.  A  solution  of  these 
questions  will  be  best  determined  by  a  reference  to  cases  involv- 
ing such  principles. 

"Taylor  v.  Ketchum,  35  How.  Pr.  (N.  Y)  289;  Taylor  v.  Ketchum,  5 
Robt.  (N.  Y.)  507. 

»*Tarpy  v.  Shepherd,  30  Cal.  181. 

■«  Graves  v.  Sittig.  5  Wis.  219.  See,  also,  Williams  v.  Phelps,  16  Wis. 
80,  where  this  case  was  commented  on. 


DAMAGES.  477 

§  563.  The  same-  General  rule  is,  value  where  the  goods 
were  detained  ;  value  in  another  market  may  be  evidence. 

As  a  general  rule,  it  may  be  stated  that  the  value  of  the  goods  at 
the  place  where  they  were  detained,  that  is,  at  the  place  where 
demand  was  made,  or  delivery  should  have  been  made,  is  the 
proper  one.  The  value  in  an  adjacent  market  may  be  proved  as 
a  fact  not  establishing  the  value,  but  as  an  aid  to  assist  the  court 
or  jury  in  arriving  at  the  true  value  at  the  place  where  the  de- 
tention was  had ;  and  eases  frequently  arise  where  such  proof, 
coupled  with  testimony  of  the  cost  of  reaching  such  market,  be- 
comes relevant  and  proper  in  the  higliest  degree.  "NVhere  the 
property,  however,  when  demanded,  is  sittiated  at  or  adjacent  to 
a  steady  and  reliable  market  for  such  goods,  the  value  at  that 
place  should  govern,  Avithout  reference  to  a  distant,  though  per- 
haps more  advantageous,  one.'-*  In  trespass  for  timber  cut  and 
removed,  the  court  said  the  plaintiff  might  have  recovered  his 
log.s,  had  he  chosen  to  pursue  them  ;  but  as  he  elected  to  sue  in 
trespas.s,  he  therefore  can  recover  only  the  value  of  the  logs  at 
the  place  where  the  injury  was  done."  So,  where  the  action  was 
for  coal  dug  in  the  mine  of  another.** 

§  5<»4.  The  same.  Expense  of  transportation,  etc. 
When  the  action  was  for  hay  taken  in  Alameda  County,  and 
afterwards  transported  by  the  defendant  to  San  Francisco,  the 
l)laintiff  claimed  the  highest  price  at  the  latter  place.  The  court 
said  the  market  value  Mas  to  be  ascertained  at  the  place  where 
the  conversion  was  had.^"  In  Tfislcr  v.  (\fn%  the  court  said  : 
*'The  value  which  the  i)laintift"  is  entitled  to  recover  niuU'r  our 
statute  is  the  value  of  the  property,  t(^  be  ascertained  at  the 
place  where  it  is  detained,  wiien  the  action  was  comiMcnccd." 
The  property  in  this  ca.se  was  pnjduce,  part  of  whii-li  was  shipped 
to  San  Francisco  and  sold.  'I'h<!  jilaintifl"  clainicd  (he  gross 
I)roducts  of  the  .sale,  whiU;  the  defendant  clainicd  tlial  a  deduc- 
tion sliouNI  bt!  made  for  the  expenses  in  shipping,  etc.  The  court 
.said,  in  substance,  that  where,  as  in  tlu^  pi'e.sent  case,  the  jilain- 
tiff  comj)lains  only  of  the  detcntidn  of  tlie  property,  if  it  is  de- 
livered  on   demand,   his  claim    is   salislied,  except  ilamages  for 

"P'ort  V.  SaunderH.  :>  HloHk.   (Tonn.)   487. 
"CiiHhlng  V.  LonKf«!lIow,  2G  Mc  .{UC. 
-Martin  v.  I'oricr.  r,  M.  &  W.  3.03. 
"Hamer  v.  Hathaway,  :Vi  Cal.  120. 


478  THE    LAW    OF    REPLEVIN. 

detention;  if  it  oannot  bo  liad,  then  the  value  at  the  place  where 
the  delivery  should  have  been  made  stands  in  lieu  of  the  property. 
Neither  the  price  at  San  Francisco,  nor  that  price  less  the  freight 
and  conunissions,  is  the  true  criterion  of  the  value  at  the  place  of 
the  alleged  detention ;  but  proof  of  the  value  at  San  Francisco, 
and  the  cost  of  transportation  there,  is  admissible  to  assist  the 
jury  in  fixing  the  value  at  the  place  of  detention."*  The  cost  of 
manufacturing  an  article,  and  its  transportiition  to  market,  may 
properly  be  given  in  evidence,  not  as  fixing  its  value,  but  as  a  fact 
from  which  its  value,  at  the  time  and  place  of  conversion,  may  be 
arrived  at."" 

§  565.  The  same.  The  suit  was  for  the  value  of  cattle 
which  died  of  disease,  through  the  wrongful  act  of  defendant,  as 
was  charged.  At  the  point  where  the  cattle  died  there  was  no 
market,  and  it  did  not  appear  that  any  market  for  such  cattle  was 
to  be  found  within  two  hundred  miles.  The  court  allowed  evid- 
ence of  the  value  at  this  distant  market;  the  price  there  would 
necessarily  be  some  guide  to  the  value  where  the  cattle  were.'"- 

§  566.  The  same.  Reason  for  the  rules  stated.  This 
testimony,  it  will  be  ob.served,  is  not  permitted  as  fixing  tlie  value, 
but  as  furnishing  a  guide  by  which  the  true  value  may  be  ascer- 
tained, by  a  process  not  unlike  the  computations  of  value,  or 
interest  which  has  always  been  allowed.  A  similar  principle  has 
been  recognized  in  a  late  case  in  Illinois.  The  action  was  trover 
for  the  value  of  cast  steel  ingots.  The  court  said  there  being  no 
testimony  as  to  the  value  of  these  ingots  at  the  time  of  the  alleged 
conversion,  for  the  reason  that  they  had  no  market  value,  it 
was  not  error  to  allow  proof  of  what  steel  made  from  these 
ingots  was  worth  per  pound  in  the  market,  and  proof  of  how 
much  it  would  cost  to  convert  these  ingots  into  merchantable 
steel ;  thus  allowing  the  jury  to  make  a  fair  approximation  of 
the  value  of  the  ingots.'"' 

'"Hisler  v.  Carr,  34  Cal.  645;  Swift  v.  Barnes,  16  Pick.  196;  Gushing 
V.  Longfellow,  26  Me.  310. 

'O'Brizsee  v.  Maybee,  21  Wend.  144. 

'"Sellar  v.  Clelland,  2  Colorado,  532. 

""Meeker  v.  Chicago  Cast  Steel  Co.,  84  111.  277.  Consult  in  this  con- 
nection, Savercool  v.  Farewell.  17  Mich.  308;  Gregory  v.  McDowell,  8 
Wend.  435.  The  defendant  was  not  allowed  to  show  what  effect  the 
sale  of  so  large  a  quantity  would  have  on  the  market.  Dana  v.  Fiedler, 
2  Kern,  40;   Berry  v.  Dwinel,  44  Me.  267;   Dubois  v.  Glaub,  52  Pa.  St. 


DAMAGES.  479 

§  567.  Trespasser  cannot  recover  for  his  labor  in  increas- 
ing the  value.  A  party  cannot  commit  a  trespas.s  upon  his 
neighbor,  and  then  cliarge  him  Avith  the  expense  of  the  labor.  If 
so,  a  thief  might  cut  through  a  wall  and  charge  the  owner  for 
making  a  new  doorway.  Where  a  trespasser  cut  wheat,  he  Avas 
not  allowed  to  deduct  the  cost  of  cutting,  though  he  performed 
the  whole  labor  of  harvesting  it."**  So  where  timl)er  is  wrong- 
fully taken  and  made  into  shingles,  the  owner  may  recover  the 
value  as  shingles ;  '"*  or  if  transported  to  a  distant  market,  the 
owner  may  recover  the  goods  or  value  at  that  market.'"*  The  rule 
may  be  regarded  as  general  and  well  settled  that  a  wrong-doer 

238;  Doak  v.  The  Exr.  of  Snopp,  1  Cred.  (Tenn.)  181;  Durst  v.  Burton, 
47  N.  Y.  175;  Smith  v.  Griffith,  3  Hill,  333;  Wemple  v.  Stewart,  22  Barb. 
154. 

">♦  Bull  y.  Griswold,  19  IV.  631.  [Where  defendant  forcibly  expels 
plaintiff  from  his  fields,  and  takes  and  harvests  and  markets  the  wheat 
growing  therein,  he  will  not  be  allowed  an  abatement  of  damages  for 
the  value  of  his  labor  in  gathering  and  preparing  the  crop,  Ellis  i'. 
Wire,  33  Ind.  127.  And  where  an  officer  levies  upon  the  growing  grain 
of  A,  under  execution  against  a  stranger,  he  is  not  to  be  allowed  the 
expense  of  harvesting,  threshing  and  marketing  it,  Sims  r.  Mead,  29 
Kans.  124.  But  where  defendant  cut  trees  upon  state  land  under  the 
fixed  belief  that  he  was  authorized,  and  converted  the  logs  into  lumber 
and  conveyed  it  to  market,  held,  that  even  though  the  permit  under 
which  defendant  assumed  to  act  was  absolutely  void,  the  state  should 
be  allowed  only  the  value  of  the  trees  as  they  stood,  with  interest  to  the 
verdict.  State  v.  Shevlin  Co.,  02  Minn.  99,  64  N.  W.  81;  Bond  r.  Griffin, 
74  Miss.  599,  22  So.  187;  Illinois  Central  Co.  v.  Le  Blanc.  74  .Miss.  6.".0, 
21  So.  760;  Acree  v.  Bufford,  8  i  .Miss.  565.  31  So.  898.  License  to  fell 
timber  upon  certain  lands;  the  trees  were  felled  by  a  trespasser; 
licensee  brought  replevin; — held,  he  thereby  adopted  the  act  of  sever- 
ance and  must  reimburse  the  defendant  what  he  had  expended  in  that 
service.  FCeystone  Co.  v.  Kolman.  94  Wis.  465,  69  N.  W.  165.  The  inno- 
cent purchaser  of  lumber,  manufactured  from  logs  cut  by  a  trespasser, 
must  answer  in  the  same  measure  of  damages  as  the  original  wrong- 
doer; t.  r.,  the  value  as  the  thing  is  at  the  time  of  liLs  purcliaso.  Bolles 
Wooden  ware  Co.  v.  I'nited  Stales.  16  Otto  (l(t6  V.  S.)  432,  27  L.  Ed.  230. 
Conditional  sale  of  Htanfliiig  timber;  the  vendee  sold  the-  logs  to  de- 
fendant, who  bought  witliout  notice  of  the  rcwrvation  of  the  title  by 
the  original  vendor;  held  the  original  vendor  might  for  nonpayment 
of  the  purchane  money,  recover  the  lumber  made  from  the  logs,  but  the 
measure  of  IiIh  damagen  was  only  the  anioiiiit  due  him  with  Interest. 
I.lllle  r.   Dunbar,  62  WIh.   1»H,  22   N.   W.  467. | 

"•  Baker  v.  Wheeler,  8  Wend.   r.fMi. 

'"Neabltt   v.   St.   I'aul    Lumber  Co.,   21    Minn.   492. 


480  THE    LAW    OF    REPLEVIN. 

cannot  sell  the  goods  and  compel  tlu^  owner  to  aecept  the  price  at 
■which  they  were  sold.  If  there  has  been  a  loss,  the  owner  is 
under  no  obligation  to  incur  it."" 

§  ^^OS.  Or  make  a  profit  out  of  his  wrongful  taking. 
Neither  is  such  a  taker  or  detainer  permitted  to  make  a  profit 
out  of  his  wrong.  If  tlie  goods  have  been  sold  at  a  profit,  the 
owner  is  entitled  to  it,  and  the  wrongful  taker  cannot  assert  any 
right  to  it  which  is  not  ba.sed  upon  ownership  of  the  property.'"" 
In  Siofdam  v.  Jenkins,  3  Sandf.  (X.  Y.)  621,  after  an  exhaustive 
consideration  of  this  question,  the  court  laid  down  the  rule  as 
follows :  "  Add  to  the  value  of  the  i)roperty  when  the  owner  is 
dispossessed,  the  damages  which  ho  is  jirovod  to  have  sustained 
from  the  loss  of  its  possession."  It  is  when  the  property  is 
wrongfully  taken  or  detained  that  a  right  of  action  accrues  to  the 
owner.  He  is  then  entitled  to  demand  a  compensation  for  his 
loss;  and  if  his  demand  is  then  complied  with,  it  is  plain  that 
the  value  of  the  property  at  that  time,  by  which  we  mean  its 
market  value,  the  sum  for  which  it  could  then  be  sold  would  con- 
stitute at  least  a  portion  of  the  amount  that  the  wrong-doer 
would  be  bound  to  pay.  This  sum  may,  therefore,  be  fairly  con- 
sidered as  a  debt  then  due,  and  consequently  interest,  until  the 
time  of  trial  or  judgment,  must  in  all  cases  be  added  to  complete 
the  indemnity.  It  is  not,  however,  in  all  cases  that  the  value  of 
the  property  when  the  owner  is  dispossessed  is  to  be  determined 
by  a  reference  to  its  market  price,  nor  in  all  that  the  damages, 
Avhich  are  to  be  added  to  the  value,  are  to  be  limited  to  the  mere 
allowance  of  interest.  In  most  cases  the  market  value  of  the 
property  is  the  best  criterion  of  its  value  to  the  owner;  but  in 
some  cases  its  value  to  the  owner  may  greatly  exceed  the  sum 
that  any  purchaser  would  be  willing  to  pay.  The  value  to  the 
owner  may  be  enhanced  by  personal  or  family  considerations,  as 
in  the  case  of  family  pictures,  plate,  etc.;  and  we  do  not  doubt 
that  the  ^^pretium  affectionis,^''  instead  of  the  market  price,  ought 
then  to  be  considered  by  the  jury  or  court  in  estimating  the 
value.  In  these  cases,  however,  it  is  evident  that  no  fixed  rule  to 
govern  the  estimate  of  value  can  be  laid  down,  but  it  must  of 
necessity  be  left  to  the  sound  discretion  of  a  jury.     But  where  an 

""Hamer  v.  Hathaway.  33  Col.  119;  Douglass  v.  Kraft,  9  Cal.  562. 
'<^  Whitfield  V.  Whitfield,  40  Miss.  352;    Mayberry  v.  Cli£fe,  7  Coldw. 
(Tenn.)   124;   Suydam  v.  Jenkins,  3  Sandf.  615. 


DAMAGES.  481 

assignee  for  the  benefit  of  creditors,  who  must  have  sold  the 
goods  had  they  come  to  his  hands,  brought  suit  against  a  sheriff 
who  had  seized  them  upon  an  execution,  the  jury  might  properly 
allow  the  amount  for  which  they  were  sold  by  the  sheriff.'** 

§  569.  Statement  of  value  in  the  affidavit  usually  binds 
the  plaintiff,  but  not  the  defendant.  When  the  vahie  of  prop- 
erty is  to  be  assessed,  the  statement  in  the  affidavit  of  the  plain- 
tiff as  to  the  value  is  frequently  regarded  as  estopping  him  from 
asserting  a  different  value.  After  fixing  the  value  at  a  time 
when  he  was  seeking  the  delivery  of  the  property  on  the  writ,  he 
should  not  be  heard  to  complain  of  the  value  so  fixed  by  himself; 
but  the  defendant,  who  is  in  no  way  concerned  in  so  fixing  the 
value,  is,  of  course,  not  affected  by  it.'"*  This  rule  may  in  some 
cases  work  injustice,  and  in  exceptional  cases  the  plaintiff  may 
be  heard  to  explain  what  is  in  ordinary  cases  prima  facie  evidence 
ag-ainst  him.'"  But  this  does  not  authorize  the  clerk  of  the 
court  to  enter  up  judgment  against  the  plaintiff  for  that  value, 
upon  a  default  and  order  for  restitution.  The  right  to  possession 
or  title  to  property  is  the  real  issue  to  be  tried,  and  not  the 
value.'"  The  value  is  required  to  be  found  in  certain  States  to 
inform  the  court  what  judgment  to  render  or  what  sum  to  collect 
in  case  return  or  delivery  cannot  be  had;  otherwise  the  value  is 
immaterial  in  the  replevin  suit.'"  When  the  property  is  expected 
to  diminish  in  value  by  lapse  of  time,  the  obligor  ought  to  be 
bound  by  the  value  stated  by  himself."*  The  enforcement  of  this 
rule  is  calculated  to  promote  a  fair  and  reasonable  estimate,  in 
his  affidavit,  by  tiie  party  seeking  the  delivery. 

§  570.  Appraisement  does  not  bind  either  party.  An 
appraisement  of  the  vahie,  under  the  statute,  and  a  return  of  that 
value,  does  not  preclude  either  party  from  offering  the  testimony 

••Whitehouse  v.  Atkinson.  3  C.  &  P.  344. 

""Gray  v.  Jones.  1  Head.  544;  Huggeford  v.  Ford.  11  Pick.  225;  Swift 
V.  Barnes.  IC  Pick.  19C;  Mlddleton  r.  Bryan.  3  .Maul.  &.  S.  155;  Tuck  v. 
Moses.  58  Me.  477;  Parker  v.  Slraonds.-S  Met.  205;  Clap  v.  Guild,  8  Mass. 
153;  Washington  Ice  Co.  v.  Webster.  62  Me.  341. 

'"GIbbs  V.  Bartlett.  2  W.  ft  S.  (Pa.)  34. 

'"Thomas  v   Spofford,  46  Me.  408. 

"*  Cases  last  cited. 

'"Howe  V.  Handley,  28  Me.  251;  Swift  i'.  Barnes,  16  Pick.  194;  Parker 
V.  SimondB.  8  Met.  205. 
31 


482  THE    LAW    OF    REPLEVIN. 

of  competent  witnesses  so  as  to  show  tlie  real  value,"*  as  in  such 
case  neither  party  is  called  upon  to  art  in  making  the  appraisal. 
Neither  is  such  an  api^raisal  bnuling  npt)n  the  sheritl'  who  caused 
it  to  he  made.  But  in  case  an  ottieer  is  sued,  his  return  of  an  aj)- 
praisement  which  he  caused  to  be  made  may  be  admitted  as 
prima  fi(cie  evidence  aganist  him."* 

§  571.  Special  damages  must  be  specially  pleaded. 
Special  damages  not  naturally  arising  from  the  tortious  act  com- 
plained of,  nuist  be  esi)ecially  alleged  in  tlie  declaration,  and 
proved  as  alleged."'  Tlie  circumstances  of  the  taking  need  not 
be  set  out  to  entitle  the  plaintiff  to  damages  connnensurate  with 
the  injur}'^  which  tlie  taking  occasioned  and  wliicli  are  the  natural 
or  expected  result  of  such  taking ;  "/and  under  a  general  alle- 
gation of  damages,  the  plaintiff  may  prove  any  depreciation  in 
the  value  of  the  goods  while  they  were  in  the  defendant's  hands, 
from  any  naturally  expected  cause  ; ""  but  any  and  all  special 
damages  from  whatever  causes  arising,  such  as  loss  of  business 
where  that  is  proper,  unexpected  depreciation  in  value  of  the  prop- 
erty, or  damages  from  any  wrongful  act  of  the  party  subsequent 
to  the  tjiking,  should  be  specially  alleged.'^" 

'"^Kafer  v.  Harlow,  5  Allen,  348;  Leighton  v.  Brown,  98  Mass.  515; 
Wright  V.  Quirk,  105  Mass.  48. 

"•Sanborn  v.  Baker,  1  Allen,  521;  Kafer  v.  Harlow,  5  Allen,  (Mass.) 
348. 

"•Bodley  v.  Reynolds,  8  Q.  B.  779;  Park  v.  McDaniels,  37  Vt.  594; 
Damron  v.  Roach,  4  Humph.  (Tenn.)  134;  Slack  v.  Brown,  13  Wend. 
390,  393;  Schofield  v.  Ferrers,  46  Pa.  St.  438;  Armstrong  v.  Percy,  5 
Wend.  535;  Strang  v.  Whitehead,  12  Wend.  64;  Bennett  v.  Lockwood, 
20  Wend.  223;  Smith  v.  Sherwood,  2  Tex.  460;  Bogert  v.  Burkhalter,  2 
Barb.  525;  Vanderslice  v.  Newton,  4  Comst.  (N.  Y. )  130;  Burrage  v. 
Melson,  48  Miss.  237;  Stevenson  v.  Smith,  28  Cal.  102;  Smith  v.  Sher- 
man, 4  Cush.  (Mass.)  408;  Davis  v.  Oswell,  7  C.  &  P.  804.  See  White  v. 
Suttle,  1  Swan.   (Tenn.)  174. 

""Schofield  V.  Ferris,  46  Pa.  St.  438;  Fagen  v.  Davison,  2  Duer.  153. 
But  see  and  compare,  Woodruff  v.  Cook.  25  Barb.  505. 

"'Young  V.  Willett,  8  Bosw.  (N.  Y.)  486.  Even  though  the  damage 
did  not  accrue  until  some  time  afterward.  Dickinson  v.  Boyle,  17  Pick. 
78;  Brown  v.  Cummings,  7  Allen,  507.  The  following  English  cases, 
though  none  of  them  cases  in  replevin,  illustrate  the  rule  requiring 
special  damages  to  be  pleaded  specially:  Rose  v.  Groves,  5  M.  &  G. 
613;  Sippora  v.  Basset,  1  Sid.  225;  Lowden  v.  Goodrick,  Peake,  (N.  P.) 
46;  Pettit  v.  Addington,  Peake,  (N.  P.)  62;  Lindon  v.  Hooper,  1  Cowper, 
418. 

""Stevenson  v.  Smith,  28  Cal.  103;  Strang  v.  Whitehead,  12  Wend.  64; 


DAMAGES.  483 

§  572.  Loss  by  interruption  of  business.  In  replevin,  as 
in  all  other  actions  in  the  nature  of  tort,  the  damages  should  not 
be  less  than  the  amount  of  loss  actually  sustained,  but  the  loss 
must  be  real,  not  speculative  or  probable  merely.'"  Where  the 
landlord  wrongfully  cut  off  steam  power  from  his  tenant's  mill, 
the  tenant  had  a  right  to  suppose  it  was  permanent,  and  dispose 
of  his  stock,  machinery  and  fixtures,  on  the  best  terms  he  could, 
and  the  wrong-doer  should  be  held  liable  for  any  loss  that  might 
be  sustained  from  such  a  sale,  so  far  as  the  same  was  the  natural 
and  probable  result  of  the  landlord's  wrongful  act.  In  estimating 
the  loss  sustained  by  breaking  up  his  established  business,  there 
would  seem  to  be  no  Avell  founded  objection  to  ascertain  the 
amount  of  profits  which  it  has  yielded  for  a  reasonable  period  next 
preceding  the  time  when  the  injury  was  inflicted,  leaving  the 
other  party  to  show  that  by  depression  in  trade  or  other  causes 
they  would  have  been  less.'" 

Dewint  v.  Wiltsie,  9  Wend.  326.  [Damages  for  detention  cannot  be 
allowed  unless  demanded  by  the  pleadings,  Creighton  v.  Haythorn,  49 
Neb.  526,  68  N.  W.  934.  Nor  in  e.xcess  of  what  is  demanded,  Broolc  v. 
Bayless,  6  Okl.  568.  52  Pac.  738;  Ocala  Co.  v.  Lester,  Fla.,  38  So.  51.  Dam- 
ages to  the  goods  between  the  demand  and  the  talking  by  the  sheriff. 
cannot  be  recovered  unless  the  facts  are  set  forth  in  the  complaint,  and 
the  damages  are  demanded.  Rapid  Safety  Co.  v.  Wycltoff,  20  Misc  17,  44 
N.  Y.  Sup.  601.  Damage.s  for  the  e.xposure  and  illness  of  a  child  by 
reason  of  the  unlawful  taking  of  defendant's  household  goods,  cannot 
be  recovered  without  proper  averment  and  demand,  Bateman  v.  Blake, 
81  Mich.  227,  45  N.  W.  831;  nor  expenses,  though  incurred  on  the  faith 
of  assurances  of  the  other  party,  Johnson  v.  Eraser,  2  Idaho,  404,  18 
Pac.  48.  Where  the  property  is  damaged  while  in  plaintiff's  pos- 
session the  defendant  may,  by  supplementary  answer,  set  up  such 
damages  and  recover  them,  Bowersock  v.  Adams,  59  Kans.  779,  54 
Pac.  1064.  But  for  things  not  marketable,  converted,  the  owner 
recovers  the  value  to  him,  and  he  need  not  declare  for  it  specially, 
Stlckney  v.  Allen,  10  Gray,  352.  And  It  is  not  necessary  to  aver  the 
value  of  the  use  or  hire  of  the  goods,  but  only  the  value  of  the  goods 
themselves,  in  order  to  recover  Interest  thereon,  Macon  Co.  v.  Meador, 
67  Ga.  072.  Statute  that  the  jury  may  assess  damage.s  "  If  any  are 
claimed  In  thf;  fompiaint  or  answer:  "  a  mere  demand  of  judgment  for  f 
the  goods  "  with  (lamag«;s  for  their  taking  and  detention,"  not  setting 
forth  any  faclH  out  of  which  danuigoK  rould  arlne,  except  the  taking  and 
detention,  is  not  Hufflcient  to  enlltl<»  the  defendant  prevailing  to  damages. 
Shafer  v.  RuhhpII.  28  Utah.  444,  79  Pac.  559.] 

"'  Baker  v.  Drake.  53  N.  Y.  212;   I.oker  v.  Damon,  17  PUk.  284. 

'"Chapman    v.    Kirby,    49    III.    219.     A    very   Blmllar   cane.    White    r. 
Moscley,  8  Pick.  356.     See,  albo,  Davenport  v.  Ledger.  80  III.  578.     WIhm 


/ 


484  THE    LAW    OF    REPLEVIN. 

§573.  The  same.  Prospective  profits.  This  rule  is  prob- 
ably more  liberal  than  that  sustained  by  the  current  of  authority, 
though  cases  may  be  found  to  support  it.  But,  as  a  rule,  dam- 
ages which  include  the  expected  profits  of  the  party  in  business 
with  the  hazard  attending  it,  are  usually  regarded  speculative, 
rather  than  real.'"  For  example,  profits  which  are  expected  from 
the  use  of  circus  horses  in  the  circus  business,  cannot  be  a  meas- 

a  party  leased  a  tavern  and  agreed  to  keep  a  certain  ferry  in  good  order, 
and  afterward  diverted  the  travel  to  another  ferry,  the  lessor  was  al- 
lowed to  recover  his  rent,  but  not  expected  profits.  Dewint  v. 
Wiltsie,  9  Wend.  326.  [Damages  to  other  property  by  reason 
of  the  taking  of  that  in  controversy,  are  not  recoverable,  Schrandt  v. 
Young,  62  Neb.  254,  86  N.  W.  1085.  Plaintiff  replevied  a  barn  of  which 
defendant  was  tenant  at  will  and  in  which  he  had  broom-corn;  defend- 
ant prevailing  plaintiff  was  not  liable  for  damages  to  the  broom-corn 
by  reason  of  exposure  to  a  sudden  fall  of  snow,  Jameson  v.  Kent,  42 
Neb.  412,  60  N.  W.  879.  That  plaintiff  by  being  deprived  of  his  tools 
lost  his  job,  is  not  to  be  considered  in  estimating  his  damages  in  re- 
plevin for  the  tools,  Kelly  v.  Altemus,  34  Ark.  184.  But  where  the 
machinery  of  a  manufactory  was  replevied  and  defendant  prevailed,  it 
was  held  that  he  might  recover  among  other  items  of  damage  the  loss 
resulting  from  the  interruption  of  his  business  and  the  expense,  delay 
and  annoyance  attending  the  replacement,  Stevens  v.  Tuite,  104  Mass. 
328.  Plaintiff's  goods  were  taken  upon  execution  against  a  stranger  and 
he  was  required  to  give  a  receiptor;  he  was  accordingly  left  in  posses- 
sion, went  on  with  the  business  and  sold  the  goods;  the  receiptor  v/as 
afterwards  sued  on  his  receipt,  and  it  was  held  that  the  plaintiff  mi  jht 
recover  the  full  amount  for  which  the  receiptor  was  liable,  Phillips  v. 
Hall.  8  Wend.  610.  The  jury  must  not  be  left  to  confuse  damages 
arising  from  the  taking  of  exempt  goods  with  those  arising  from  the 
destruction  of  business,  McGuire  v.  Galligan,  57  Mich.  38,  23  N.  W.  479.] 
'-'  Bonesteel  v.  Orvis,  23  Wis.  524.  See  Seldner  v.  Smith,  40  Md. 
603;  Brannin  v.  Johnson,  19  Me.  361.  [Plaintiff,  recovering  a  saw-mill, 
is  not  allowed  the  estimated  profits  of  operating  it  during  its  detention, 
even  though  he  had  an  unfulfilled  contract  for  the  manufacture  of  such 
things  as  the  mill  would  produce.  Talcott  v.  Crippen,  52  Mich  633,  18 
N.  W.  392.  Profits  which  depend  upon  capital,  skill,  supplies,  demand 
or  the  product,  are  too  uncertain  to  be  accepted  as  a  measure  of  damages 
Allis  V.  McLean,  48  Mich.  428,  12  N.  W.  640.  Loss  of  rents  is  not  al- 
lowed where  it  does  not  appear  that  t'le  plaintiff  would  have  rented  the 
premises.  Id.  The  conjectural  profits  of  a  whaling  voyage  are  not  to 
be  allowed,  Brown  v.  Smith,  12  Gush.  366;  nor  the  loss  of  profits  which 
th  defendant  might  have  gained  by  an  agister's  contract,  with  the 
plainti-  i:  the  animals  had  been  left  with  him,  Schrandt  v.  Young,  62 
Neb.  354   86  N.  W.  1085.] 


DAMAGES.  485 

ure  of  damages ;  '■*  and  as  a  rule,  purely  speculative  or  contingent 
damages  can  never  be  allowed.'-'^  The  expected  i)rofits  of  a  stock 
speculation  carried  on  with  the  defendant's  capital,  cannot  be  a 
proper  element  of  damages  in  a  suit  for  an  unauthorized  sale  of 
stocks  by  the  defendant,  who  was  the  broker.'-*  The  profits  of  an 
illegal  business  cannot  be  an  element  of  damages  in  any  case. 
The  expected  profits  of  a  })atent  machine  cannot  be  allowed.'" 
And  as  a  general  thing,  loss  by  a  mercantile  firm  by  the  seizure 
of  their  goods  and  interruption  to  their  business,  and  conseejuent 
loss  of  expected  profits,  is  not  a  proper  element  in  computing 
damages.'-" 

§  574.  Loss  of  real  or  probable  profits.  The  jury  may 
allow  for  the  loss  of  near  and  stable  or  probable  profits.'"  So 
when  the  plaintiff's  bridge  was  carried  away  by  the  wrongful  act 
of  the  defendant,  the  loss  of  tolls  during  the  time  necessary  re- 
quired to  rebuilt  it,  is  a  proper  element  of  damages.'^"  Of  course 
the  jury  nmst  take  into  consideration  the  degree  of  probability 
that  the  party  would  have  made  a  profit ;"''  and  damages  can 
never  include  expected  profits,  unless  it  appear  affirmatively  that 
the  party  was  absolutely  prevented  from  realizing  them  by  some 
act  of  the  party  in  default;''-  a  party  cannot  permit  his  business 
to  lie  still  or  suffer  a  loss  of  profit,  and  collect  the  damages  so  occa- 
sioned, from  the  defendant.'" 

§  575.  Party  claiming  damages  must  do  what  he  can  to 
avoid  loss.  A  party  may  show  that  he  has  done  all  in  his  power 
to  avoid  the  damaging  effect  of  the  defendant's  act,  and  sueh  evi- 

"♦  Butler  V.  Mehrling,  15  111.  490.  See.  also,  Butler  v.  Collins,  12  Cal. 
457;  Campbell  v.  Woodworth,  26  Barb.  048. 

"*  Houghton  V.  Peck,  8  Pa.  St.  42.     See  cases  last  cited. 

"•Baker  v.  Drake,  53  N.  Y.  211. 

•"Houghton  V.  Peck,  8  Pa.  Ct.  42. 

'"Selden  v.  Cashman,  20  Cai.  f^T.  See  Allred  v.  Bray,  41  Mo.  484. 
For  wrongful  attachment,  plaintiff  was  allowed  to  prove  that  her 
business  was  destroyed  and  she  reduced  to  poverty.  Moore  i'.  Schultz, 
31  Md.  418.     See  Ovlatt  v.  Pond.  29  Conn.  479. 

•■Mayberry  v.  Cllffe,  7  Cold.  (Tenn.)  121.  Compare  Padllc  Ins.  Co. 
V.  Conard,  1   Baldw.    (C.  C.)    138. 

•-SewellH  Falls  Bridge  v.  Flsk.  23  N.  II.   171. 

•"  Mayberry   v.   Cliffe,   7   Cold.    iTcnn.)    124. 

'"Palm  V.  The  Ohio  &  MIhb.  R.  R.  Co.,  18  111.  217;  The  County  of 
Christian   v.  Overholt.    18   III.    223. 

'"Hrl/.Kcc  r    Maylxc,   2!    Wciid.    144. 


486  THE    LAW    OF    REPLEVIN. 

dence  will  not  diminish  the  damages."*  If  a  trespasser  willfully 
leaves  his  neighbor's  gate  open,  and  cattle  enter  and  destroy  his 
crop,  the  trespas.'^er  is  liable;  but  if  the  owner  pass  it  before  the 
cattle  enter,  and  refuse  to  shut  it,  he  cannot  recover.'"  The  rule 
may  be  stated,  that  a  party  who  suffers  injury  from  the  wrongful 
act  of  another,  must  do  what  he  can  to  render  the  evil  results  as 
light  as  possible."*  Where  the  defendant  took  the  plaintiff's 
horse,  which  was  useful  to  him  in  the  way  of  trade,  he  was  al- 
lowed the  cost  of  hiring  another  horse,  less  the  amount  he  would 
have  paid  for  keeping  his  own  while  it  was  taken  '" 

§  576.  Expenses,  counsel  fees,  etc.  Expenses  sometimes 
form  a  part  of  the  damage  which  a  party  has  really  sustained, 
and  the  question  as  to  how  far  they  can  be  reimbursed,  is  one  of 
considerable  importance.  As  a  rule,  expenses  of  the  party  in  en- 
deavoring to  recover  his  j)roperty,  time  spent  in  getting  the  writ, 
attending  court,  etc.,  are  not  allowable  as  part  of  the  damages.** 
Neither  are  counsel  fees  and  other  expenses  of  the  suit,  apart 
from  the  costs  adjudged,  strictly  recoverable  in  the  way  of  dam- 
ages."^    The  only  ground  on  which  they  should  be  allowed  is  in 

'»*  Chandler  v.  Allison,  10  Mich.  461. 

'"  Loker  v.  Damon,  17  Pick.  289. 

'=«  Chandler  v.  Allison,  10  Mich.  4G1. 

"'  Davis  V.  Oswell,  7  Car.  &  P.  804. 

"'  Blackwell  v.  Acton,  38  Ind.  426.  But,  cont7-a,  see  Bennett  v.  Lock- 
wood,  20  Wend.  222. 

'^'  Park  V.  McDaniels,  37  Vt.  594;  Earl  v.  Tupper,  45  Vt.  287;  Hoadley 
V.  Watson,  45  Vt.  289;  Pacific  Ins.  Co.  v.  Conard,  1  Baldwin,  (C.  C.)  138. 
[If  the  plaintiff  prevails  he  recovers  for  his  expense  and  time  in 
searching  for  his  property,  Yelton  v.  Slinkard,  85  Ind.  190;  Brennan  v. 
Shinkle,  89  Ills.  605.  Moneys  expended  in  pursuit  of  the  goods  may 
be  allowed  as  part  of  the  plaintiff's  damages,  Arzaga  v.  Villalaba,  85 
Calif.  191,  24  Pac.  656;  Cain  v.  Cody,  29  Pac.  778;  Renfro  v.  Hughes, 
69  Ala.  581;  but  see  Kelly  v.  McKibben,  54  Calif.  192;  Redington  v. 
Nunan,  60  Calif.  632.  The  plaintiff  must  show  that  the  time  and 
money  were  properly  expended,  and  the  amount,  Sherman  v.  Finch, 
71  Calif.  70,  11  Pac.  847;  Hays  v.  Windsor,  130  Calif.  230,  62  Pac.  395. 
Plaintiff  may  recover  the  cost  of  replacing  a  building  unlawfully  re- 
moved by  defendant,  Byrnes  v.  Palmer,  113  Mich.  17,  71  N.  W.  331.  And 
the  reasonable  and  proper  expenses  incurred  by  defendant  prior  to 
the  replevin,  looking  to  the  removal  of  the  goods,  may  be  allowed,  even 
although  after  notice  of  the  institution  of  the  suit  such  preparations 
were  continued,  Washington  Co.  v.  Webster,  68  Me.  449.  But  defend- 
ant prevailing  will  not  be  entitled  to  recover  the  cost  of  a  new  article 
purchased  to  supply  the  place  of  that  replevied,  Adams  v.  Wright,  74 


DAMAGES.  487 

case  where  the  jury,  as  a  matter  of  discretion  with  which  they 
may  be  vested,  consider  the  expenses  in  order  that  the  plaintiff 
may  not  be  impoverished  by  the  cost  of  asserting  his  right  in 
court.***'  In  Connecticut  tlie  rule  appears  to  be  that,  when  the 
injury  is  wantonly  inliicted,  the  expenses  of  litigation  may  be  in- 
cluded as  a  proper  part  of  the  damages.'" 

§  577.  The  same.  In  Pavijic  Ins.  Co.  v.  Coxanl,  1  Baldwin, 
(U.  S.  C.  C.)  188,  the  court  instructed  the  jury  that  in  cases 
where  the  taking  was  willful,  the  expenses  Avhich  the  party  has 
been  put  to,  to  assert  his  rights,  might  properly  be  taken  into 
consideration  by  them  in  making  up  their  estimate  of  damages. 
In  Xew  York  it  was  said  that  where  the  taking  was  wrongful, 
the  plaintiff  may  recover  a  reasonable  amount  for  time  and  ex- 
Conn.  551,  51  Atl.  537.  Attorney's  bill  is  not  recoverable,  Harris  v. 
Smith,  132  Calif.  316,  64  Pac.  409;  Black  r.  Hilliker,  130  Calif.  190, 
€2  Pac.  481;  Carraway  r.  Wallace,  17  So.  930;  Hays  v.  Windsor,  supra. 
Knight  V.  Beckwith  Co.,  6  Wyo.  500,  46  Pac.  1094;  Mix  v.  Kepner, 
81  Mo.  93;  Hampton  Co.  v.  Sizer,  35  Misc.  391,  71  N.  Y.  Sup.  990. 
Defendant  prevailing,  is  not  allowed  either  his  attorney's  bill  nor 
the  expenses  of  the  preparation  and  conduct  of  his  defense,  Edwards 
V.  Bricker,  66  Kans.  241,  71  Pac.  587.  In  Taylor  r.  Morton,  61  Miss.  24,  it 
was  said  that  to  entitle  the  plaintiff  to  recover  his  attorney's  bill,  there 
must  have  been  willful  w^rong  akin  to  fraud,  oppression,  or  malice,  in 
the  conduct  of  the  defendant.  Nor  is  plaintiff  allowed  for  his  time 
In  preparing  his  defense,  or  his  board  and  other  expenses  during  that 
time.  Becker  v.  Staab,  114  la.  319,  86  N.  W.  305;  nor  for  his  time  lost 
in  prosecuting  his  claim,  Taylor  v  Morton,  61  Miss.  24;  nor  where  tho 
defendant  is  an  innocent  purchaser  from  the  original  wrong-doer,  is 
plaintiff  to  be  allowed  the  expense  of  a  journey  from  his  home  in 
searching  for  the  goods,  Renfro  v.  Hughes,  supra.  In  one  case  plain- 
tiff was  allowed  the  expense  of  sending  a  man  from  a  distant  point  to 
demand  the  goods,  Davis  Sewing  Machine  Co.  v.  Best,  50  Hun.  76,  4  N. 
Y.  Sup.  510.  But  in  Cook  v.  Gross.  60  Ap.  Div.  446,  69  N.  Y.  Sup.  924. 
the  court  refused  to  extend  this  doctrine  so  as  to  allow  the  bill  of  an 
attorney  for  making  demand;  and  in  Hampton  Co.  v.  Sizer.  3.')  Misc. 
391,  ( 1  N.  Y.  Sup.  990.  railway  faros  of  an  ofTli  or  of  the  plaintiff  journey- 
ing about  the  litigation,  were  refused.  Nor  is  there  an  allowance  for 
trouble  and  expense  not  made  necessary  by  the  conduct  of  the  de- 
fendant and  to  which  the  plaintiff  would  have  l)pen  put  had  there 
been  no  taking.  Wlldman  r.  Sterrltt.  80  Mich.  651.  45  N.  W.  657.] 

'"Williams  V.  Ives.  2  Conn.  568;  Parsons  v.  Harper.  16  Gratt.  (Va. ) 
64;   Earl  v.  Tupper.  45  Vt.  275;  Hoadley  v.  Watson.  lb.  289. 

'"  LlnHley  r.  Hnshnell.  15  Conn.  225;  Welch  r.  Durand.  36  lb.  182; 
Piatt  t).  Brown,  30  Conn.  336;  DIbblp  v.  Morris.  26  Conn.  416;  Ives  v. 
Carter,  24  Conn.  392;  Ucecher  v.  Derby  Bridge  Co..  24  Conn.  491. 


488  THE    LAW    OF    REPLEVIN. 

pense  incurred  in  endeavoring  to  reclaim  his  property.'"     Where 

the  defendant  took  the  plaintiffs'  horse  and  wagon,  by  reason  of 
"svhich  the  plaintiffs  were  induced  to  think  that  the  person  to 
whom  they  let  it  had  absconded,  and  they  expended  considerable 
time  and  money  in  search  of  their  proi)erty,  the  value  of  the  time 
and  the  amount  of  the  expenses  were  allowed  as  a  proper  element 
of  damages.'"  In  an  action  for  false  imprisonment,  for  an  illegal 
arrest  of  plaintiff,  evidence  of  the  value  of  the  counsel's  fees  was 
not  admitted,  not  being  specifically  laid  in  the  declaration.'"  In 
Wisconsin  it  has  been  held  that  counsel  fees  can  no  more  be  al- 
lowed in  actions  where  vindictive  damages  are  given  than  in  other 
actions.  If  they  can  be  given  by  the  jury  it  must  be  on  the  prin- 
ciple that  they  are  consequential  and  relate  to  the  amount  of  the 
compensation  ])roper  to  award,  rather  tlian  that  they  enter 
directly  into  the  compensation.'^^  So,  in  Indiana,  in  a  suit  on  the 
bond,  it  was  said  the  plaintiff  cannot  recover  fees  paid  his  coun- 
sel in  the  replevin  case,  nor  in  the  suit  on  the  bond,  nor  is  he 
entitled  to  any  fees  for  his  own  attendance  in  the  furthering  of 
his  suit.'*'  In  Vermont  the  rule  has  been  stated  that  counsel  fees 
did  not  form  a  proper  element  of  damages.'"  So,  also,  in  Mich- 
igan.'*"^ In  Ohio  the  supreme  court  said  in  substance,  that  in  cases 
nominally  in  tort,  where  no  real  malice  is  complained  of,  counsel 
fees  ought  not  to  be  included  ;  but  when  the  act  comi)lained  of 
involves  the  ingredient  of  malice,  or  insult,  the  jury  which  has 
the  power  to  punish  has  necessarily  the  right  to  include  counsel 
fee  in  their  estimate  of  damages,  if  they  see  proper  to  do  so."^ 

§  578.  Expense  of  taking  and  removing  the  property. 
The  expenses  of  taking  and  moving  the  property  by  the  officer 
should  not  be  included  in  the  damages.  They  constitute  a  part 
of  the  costs  of  the  case  and  should  be  so  assessed.'^     Where  an 

'"McDonald  v.  North,  47  Barb.  530.  See  Yantis  v.  Burditt,  2  Dana, 
(Ky.)   254. 

'"  Bennett  v.  Lockwood,  20  Wend.  223. 

'"  Strang  v.  Whitehead,  12  Wend.  64. 

*«  Fairbanks  v.  Witter,  18  Wis.  287. 

'"Davis  V.  Crow,  7  Blackf.  130;  Blackwell  v.  Acton,  38  Ind.  425. 

'"Earl  V.  Tupper,  45  Vt.  275;  Hoadley  v.  Watson,  lb.  289. 

"» Hatch  V.  Hart,  2  Gibbs,  (Mich.)  289;  Warren  v.  Cole,  15  Mich.  269. 

"'Roberts  v.  Mason,  10  Ohio  St.  177.  See,  contra.  Day  v.  Woodworth, 
13  How.  363. 

'*°  Young  V.  Atwood,  5  Hun,  (N.  Y.)  234.  Compare  Washington  Ice 
Co.  V.  Webster,  62  Me.  341. 


DAMAGES.  489 

oflBcer  seized  horses  of  A.  on  an  execution  against  him  and  A. 
afterwards  replevied  the  horses  from  the  custodian  in  whose 
charge  they  were  left,  and  afterwards  suffered  non-suit  in  the 
replevin  case,  the  costs  of  keeping  the  horses  was  held  a  part  of 
the  costs  on  the  execution.'*'  In  Illinois,  in  a  suit  on  a  replevin 
bond,  the  court  said  that  where  the  part}^  was  driven  to  compul- 
sory process  to  secure  the  property  which  was  ordered  to  be  re- 
turned to  him  in  the  replevin  suit,  he  could  recover  the  costs  of 
so  doing  in  his  action  on  the  bond.  The  costs  of  the  return  were 
not  a  part  of  the  costs  for  which  he  could  have  judgment  in  the 
replevin  suit  and  were  a  proper  item  in  the  suit  on  the  bond.'" 

"'Davis  V.  Crow,  7  Blackf.  131. 

'^'Laiigdoc  V.  Parkinson,  2  Bradw.  (111.)  136. 


490 


THE    LAW    OF    REPLEVIN. 


CHAPTER  XVIIL 


DAMAGES.— Continued. 


Section. 

Value  of  the  use  ;  when  proper 
to  be  allowed  ....  579 

This  applies  only  to  replevin     .  580 

Tiie  same.  Not  allowed  a 
pledgee  or  an  officier  of  the 
law 581,  582 

Tlie  same.  Not  allowed  unless 
the  property  is  chiefly  valu- 
able for  its  use        .        .         .  583 

"Where  the  successful  party  has 
only  a  limited  interest    584  to  586 

The  same.  As  between  the 
owner  of  a  limited  interest 
and  an  intruder       .         .        .  587 

The  same.  Between  the  gen- 
eral owner  and  the  owner  of 
a  limited  interest     .        .  588,  589 

Damages  against  officers  for 
wrongful  seizure     .        .        .  590 

The  same.  Against  officers  act- 
ing in  good  faith      .         .         .  591 

The  same.  Officer  acting  with 
malice 592 

The  same.  Where  the  suit  is 
by  the  general  owner      .         .  593 

The   same.     Where  tha  suit  is 

by  one  without  right      .         .  594 
Damages  against  officer  for  fail- 
ure in  his  duty        .         .    595,  596 
In  suits  between  different  offi- 
cers   597 

Damages  between  joint  own- 
ers       598,  599 

Effect  of  the  death  or  destruc- 
tion of  the  property        .  600,  601 


Section 

The    same.      Death    of   slaves 

l)ending  suit  does  not  affect 

the   right    to    judgment    for 

value 

The  same.     Emancipation 

Judgment  when  the  property  is 
lost  or  destroyed 

Damages  allowed  only  where 
the  defendant  is  entitled  to  a 
return       

Option  of  the  defendant  to  pay 
value  or  return  the  goods ; 
when  allowed 

Damages  to  compel  return 

When  and  how  assessed     . 

Generally  dependent  on  local 
statutes    

Value  and  damages  should  be 
separately  assessed 

Recovery  cannot  be  for  a  great- 
er svim  than  is  claimed  . 

Damages  for  property  severed 
from  real  estate ;  value  as  a 
chattel      .        .        .        612  to  614 

The  circumstances  under  which 
the  severance  was  made,  ma- 
terial to  be  considered     . 

Trees  cut  upon  the  land  of 
another  by  mistake 

The  general  rule  stated  appli- 
cable to  various  changes  in 
the  property     .... 

Vindictive  damages;  when  al- 
lowed       ..... 

The  general  principles 


602 
603 

604 


605 


606 
607 
608 

609 

610 

611 


615 


616 


617 

618 
619 


DAMAGES. 


491 


Section. 

The  same.  The  meaning  of 
the  terms ''punitive.''  '•  exeni- 
phiry"  and  "vindictive  "620,  621 

The  same.  Actual  malice  or 
gross  carelessness  must  be 
shown 622 

No  general  rule  exists  for  esti- 
mating      623 

Illustratious    of  tlie  principles 

624  to  626 


Section. 

Party  who  acts  in  defiance  of 
another's  rights  is  responsi- 
ble for  all  consequences  .  627 

Vindictive  damages  against  ofB- 
cei-s  of  the  law        .         .  628,  629 

Accounts  cannot  be  adjusted  in 
replevin 630 

But  questions  of  set-off  may  be 
investigated  in  certain  cases  .  631 

Illustrations  of  tlie  rule     .         .  633 

Set  off  to  suit  upon  bond    .         .  633 


§  579.  Value  of  the  use,  when  proper  to  be  allowed.  In 
many  cases  the  property  in  dispute  may  possess  considerable 
value  for  use,  and  small  value,  as  merchandise,  for  sale  or  for  con- 
sumption. In  such  cases  the  value  of  the  use  is  frequently 
adopted  as  the  measure  of  damages.  For  example,  where  work- 
cattle  or  horses,  tools,  or  implements  of  trade  or  husbandry,  are 
taken  from  the  owner,  who  is  thereby  deprived  of  their  use,  the 
reasonable  value  of  that  use  will,  in  many  cases,  be  the  only 
just  compen.sation  for  their  detention.'  It  would  be  highly  un- 
just to  hold  that  a  party  might  take  a  span  of  horses  worth, 
say,  one  hundred  and  fifty  dollars,  and  detain  them  a  year  and 
then  pay  six  per  cent,  on  the  value  as  compensation  to  the  o^^^le^.' 

'Allen  V.  Fox,  51  N.  Y.  562;  Morgan  v.  Reynolds,  1  Blake,  (Mon.) 
164;  Carroll  v.  Pathkiller,  3  Port.  (Ala.)  281;  Hanauer  v.  Bartels.  2  Cor. 
524;  Fralick  r.  Presley,  29  Ala.  463;  Clapp  v.  Walters.  2  Tex.  130; 
Machette  v.  Wanless,  2  Col.  180;  Clements  v.  Glass,  23  Geo.  395;  Dor- 
sey  V.  Gassaway,  2  Har.  &  J.  402.  For  ;.  case  where  the  value  of  the 
use  was  not  allowable,  see  Twinam  v.  Swart,  4  Lans.  203.  See.  also. 
Young  t'.  Atwood,  5  Hun.  234. 

*  Williams  v.  Phelps,  16  Wis.  85.  [Where  the  things  recovered  are 
valuable  In  use  the  value  of  the  use  during  detention  Is  allowed.  Lingle 
V.  Kitrhen,  G9  Ind.  349;  Werner  v.  Graley.  54  Kuns.  383,  38  Pac.  482; 
Renfro  v.  Hughes,  (i'j  Ala.  581;  Crosslcy  r.  Hojer.  11  Misc.  57.  31  N.  Y. 
Sup.  837;  Hutchinson  v.  Hutchinson.  102  Mich.  r.Sfi.  61  N.  W.  60;  Hart- 
ley Bank  v.  McCorkell,  91  la.  OOO,  Co  N.  W.  197;  Ocala  Co.  v.  Lester.  Fla., 
38  So.  51;  Benjamin  v.  Huston,  16  S.  D.  569.  94  N.  W.  584.  Such  sum 
as  the  jury  are  satlsfled  the  use  of  the  property  would  be  worth, 
Boston  Co.  V.  Myers.  143  Mass.  447.  9  N.  E.  805.  The  value  of  the  hlro 
or  use.  Woods  v.  M<CaIl,  07  Ga.  500;  e.  g..  when'  thi-  thlnns  In  ques- 
tlon  are  domestic  animals,  Chase  County  Bank  v.  Thompson.  54  Kan.s. 
307,  38  I'ac.  274;  Smith  r.  Stcvi-ns,  14  Colo.  Ap.  4!tl,  0(»  l'a<-.  5«((;  u  l<an>, 
Hutchinson  v.  Hutchinson,  supra;  a  horse.  Harth-y  Bank  v.  McCorkrll, 


492  THE    LAW    OF    REPLEVIN. 

§  580.  This  applies  only  to  replevin.  Tliis  rule,  allowing 
the  value  of  the  use,  is  peculiar  to  the  aetiun  of  replevin.  It 
grows  out  of  the  fact  that  the  plaintiti"  asserts  his  continued 
ownership  in  the  property,  and  seeks  to  recover  the  property  and 
not  its  value.  If,  as  in  trover,  the  value  was  .sought,  of  course 
compensation  for  the  use  of  the  property  to  the  party  who,  by 
his  action,  asserts  a  transfer  of  title,  would  be  absurd.'    It  only 

supra:  work  animals,  Kennett  v.  Fickel,  41  Kans.  211,  21  Pac.  93; 
Stanley  v.  Donaho,  16  Lea.  492;  oil  cars.  Merchants  Co.  v.  Kentucky  Co., 
26  C.  C.  A.  639,  81  Fed.  821;  a  slave.  Miller  v.  Jones,  26  Ala.  247;  a 
church  organ,  Farrand  Co.  v.  Board  of  Church  Extension,  17  Utah,  469, 
54  Pac.  818.  No  deduction  is  to  be  made  for  the  increase  in  value  of 
an  animal  detained,  during  the  detention,  McGrath  v.  Wilder,  77  Vt. 
431.  6  Atl.  801. 

The  question  does  not  depend  upon  the  use  or  non-use  of  the  goods 
by  the  defendant,  Aber  v.  Bratton,  60  Mich.  357,  27  N.  W.  564.  The 
successful  party  recovers  the  reasonable  value  of  the  use,  not  what  he 
might  have  made  by  the  use  in  his  own  business,  Kelly  v.  Altemus,  34 
Ark.  184;  not  what  the  defeated  party  received  for  the  use,  Adams  v. 
Wright,  74  Conn.  551,  51  Atl.  537.  In  the  case  of  machinery  which 
■wears  in  using,  the  damages  for  detention  are  reckoned  at  the  value  of 
the  use,  less  the  damage  which  would  result  from  wear  in  use.  Peerless 
Co.  V.  Gates,  61  Minn.  124,  63  N.  W.  260;  McGrath  v.  Wilder,  supra. 
And  the  party  demanding  the  value  of  the  use  must  show  that  he  was 
in  a  position  to  use  the  goods,  and  would  have  used  them,  Klinkert  v. 
Fulton  Co.,  113  Wis.  493,  89  N.  W.  507;  Smith  :;.  Stevens,  supra.  Pledgee 
of  work  animals  without  the  right  to  use  them  can  only  recover  interest 
on  the  value,  Johnson  v.  Bailey,  17  Colo.  59,  28  Pac.  81.  An  officer  claim- 
ing under  a  levy  is  not  entitled  to  recover  the  value  of  the  use,  Tandler 
V.  Saunders,  56  Mich.  142,  22  N.  W.  271;  contra  Broadwell  i'.  Paradise, 
81  Ills.  474.  Value  of  the  use  is  allowed  only  for  such  time  as  the 
property  might  reasonably  have  been  kept  employed,  Brunell  v.  Cook, 
13  Mont.  497,  34  Pac.  1015.  And  the  defeated  party  may  chow  that  the 
hire  would  have  been  less  if  taken  for  the  length  of  time  during  which 
the  property  was  detained  than  if  taken  by  the  day,  Stanley  v.  Donaho, 
supra.  Where  the  thing  detained  was  a  dummy  or  tramroad  locomotive, 
evidence  of  the  value  of  the  use  of  an  ordinary  locomotive  is  not  ad- 
missible, unless  special  circumstances  are  shown  in  the  declaration, 
e.  g.,  that  plaintiffs  were  under  necessity  to  supply  the  place  of  the 
dummy,  and  could  not  supply  it  without  the  extraordinary  expense. 
Ocala  Co.  v.  Lester,  Fla.  38  So.  512.  If  the  plaintiiT  take  judgment  for 
the  value  of  chattels  at  the  time  of  the  taking  under  the  writ  of 
replevin,  he  is  not  entitled  to  recover  for  the  use.  Colean  Company  v. 
Strong,  126  la.  598,  102  N.  W.  506.  Citing  Powers  v.  Benson,  94  N.  W. 
929,  Newberry  v.  Gibson,  101  N.  W.  428.] 

•McGavock  V.  Chamberlain,  20  111.  220;  Allen  v.  Fox,  51  N.  Y.  564. 


DAMAGES.  493 

applies  in  cases  where  the  party  claiming  the  use  is  in  a  situation 
to  use  it,  and  has  a  right  to  use  it,*  and  only  applies  to  cases 
where  the  property  can  be  put  to  use.  It  is  for  only  the  loss  of 
the  use  of  property  which  the  party  is  in  a  situation  to  use,  and 
can  use,  that  the  value  of  the  use  is  allowed. 

§  581.  The  same.  Not  allowed  a  pledgee  or  an  officer 
of  the  law.  A  mere  pledgee  of  goods  has  no  right  to  use  them. 
So,  when  the  defendant  had  a  judgment  for  the  return  of  a  sew- 
ing machine,  on  the  assessment  of  damages  the  defendant  claimed 
to  be  the  owner,  and  testified  as  to  the  monthly  value  of  the  use. 
The  plaintiff  offered  to  show  that  the  defendant  obtiiined  the 
machine  as  a  pledge  or  security  for  a  debt,  and  this  defen.se  was 
held  good,  and  a  judgment  for  the  defendant  for  the  value  of  the 
use  was  reverse^l ;  *  and,  following  tlie  analogies  of  this  case,  an 
officer  of  the  law,  who  has  seized  property  on  an  execution,  has  no 
right  to  use  the  property ;  tlie  value  of  the  use  should  not  be 
assessed  in  his  favor.* 

§  582.  The  same.  Where  the  property  was  valuable  for 
use,  plaintiff  may  recover  the  value  of  the  use  during  the  time  he 
was  deprived  of  it,  but  not  the  natural  depreciation  in  value  dur- 
ing the  same  time  ;  though  when  the  property  is  incapable  of  use, 
the  natural  depreciation  in  value  may  be  given.'  Neither  can  a 
party  be  entitled  to  interest  on  the  value,  and  at  the  same  time 
the  value  of  the  u.se.  Where  use  is  allowed  it  excludes  other  com- 
pensations during  the  period  for  which  the  use  is  allowed.  When 
a  horse  was  bailed  to  defendant  to  feed,  and  he  used  it,  and  it 
afterwards  died,  though  not  in  consequence  of  such  u.se,  the  plain- 
tiff could  not  recover  for  the  u.se,  in  an  action  of  trover.  Vw- 
haps  assumi)sit  for  the  use  might  have  been  projier.** 

§  5H3.  The  same.  Not  allowed  unless  the  property  is 
chiefly  valuable  for  its  use.  Where  the  property  is  valuable 
chiefiy  as  nHMchiindise,  kept  for  sale  or  eonsumption,  and  not  for 
use,  its  value  as  merchandise,  and  int<'rest,  and  not  the  value  of 
its  use,  is  the  piopcr  measure  (jf  damages.'     And   grurrally,  the 

*  Barney  v.  DouglaeB,  22  Wis.  4C4. 
•McArthur  v.  Howttt.  72  III.  3r.9. 

•See,  in  this  connertlon,  Twlnam  v.  Hwart.  I  I.ans.  2C3. 
'0«lf!l  V.  Hole.  2.'"i  III.  208;  Carrett  v.  Wood.  :j  Kan.  231. 
•JohnHon  r.  Wecfiman,  4  Scam.  4y<». 

•  HanaiHT  r.  HartclH,  2  Col.  &!.'>;  .Ma(  In  ttc  v.  WanloHS,  2  Col.  170; 
Shepherd  v.  JohnHon,  2  EaHt,  211;  Clark  i'.  I'lnncy,  7  Cow.  (181;  (luiilc-t  v. 


494  THE    LAW    OF    REPLEVIN. 

plaintiff  can  never  recover  the  value  of  the  use  unless  he  shows 
the  propcrt}'  to  be  valuable  only  for  its  use,  and  that  he  is  in  a 
situation  wliei'e  its  use  is  a  matter  of  riglit. 

§  584.  Where  the  successful  party  has  only  a  limited 
interest.  Where  the  successful  party  iij  replevin  has  only  a 
limited  interest  in  the  property  in  disi)ute,  as,  for  example,  a  lease- 
liold  interest,  or  a  lien  for  a  limited  amoinit,  he  cannot,  as  against 
the  general  owner,  recover  damages  greater  in  amount  than  the 
value  of  that  limited  interest.  The  justice  of  this  rule  is  apparent. 
In  a  contest  between  the  owner  of  the  general  property  and  the 
owner  of  a  limited  interest  in  the  same  property,  the  rights  of 
each  can  be  defined  and  protected.'"  To  illustrate :  When  the 
interest  of  the  plaintiff  was  only  an  execution,  and  the  other  party 
was  the  general  owner,"  or,  where  the  action  was  l)y  one  who  had 
a  life  estate  in  slaves  against  the  remainderman,  the  value  of  the 
life  interest,  and  not  the  full  value  of  the  slaves,  was  allowed." 

Asseler,  22  N.  Y.  225;  Bonesteel  v.  Orvis,  22  Wis.  522;  Allen  v.  Fox,  51 
N.  Y.  564. 

'"Townsend  v.  Bargy,  57  N.  Y.  665;  Weaver  v.  Darby,  42  Barb.  411; 
Warner  v.  Hunt.  30  Wis.  200;  Childs  v.  Childs,  13  Wis.  19;  Lloyd  v. 
Goodwin,  12  S.  &  M.  (Miss.)  223;  Williams  v.  West.  2  Ohio  St.  86; 
Rhoads  v.  Woods,  4i  Barb.  471;  Allen  v.  Judson,  71  N.  Y.  77. 

"Booth  V.  Ableman,  20  Wis.  22. 

'=  Lloyd  V.  Goodwin.  12  S.  &  M.  (Miss.)  223.  [Where  the  plaintiff  has 
only  a  special  interest,  his  damages  are  the  value  of  such  interest,  at 
the  date  of  conversion,  Holmes  v.  Langston.  110  Ga.  861.  36  S.  E.  251; 
Pico  V.  Martinez,  55  Calif.  148;  Gallick  v.  Bordeaux.  31  Mont.  328,  78 
Pac.  583.  As  against  the  general  owner,  only  the  value  of  his  interest; 
as  against  a  stranger,  the  full  value.  Jellett  v.  St.  Paul  Co..  30  Minn. 
265.  15  N.  W.  237.  An  officer  holding  goods  under  an  attachment  and 
prevailing  in  replevin,  recovers  the  amount  due  on  his  writ,  with 
interest  and  costs;  he  is  not  entitled  to  the  amount  of  a  demand  in- 
cluded in  the  attachment  and  not  then  due.  unless  circumstances  war- 
ranting an  attachment  upon  an  immature  demand  are  shown  to  exist. 
Gamble  v.  Wilson,  33  Neb.  270,  50  N.-W.  3.  Where  defendant  holds  the 
goods  as  a  pledge  and  the  plaintiff  is  the  general  owner,  defendant  may 
show  the  amount  of  the  debt  for  which  they  are  pledged,  Clow  v. 
Yount.  93  Ills.  Ap.  112.  Where  pledgee  sues  pledgor,  the  measure  of 
his  damages  is  the  value  of  the  pledge,  if  less  than  the  debt  secured, 
otherwise  the  amount  of  the  debt  at  the  trial;  or  if  the  debt  is  dis- 
charged pending  the  action,  nominal  damages.  Holmes  v.  Langston, 
supra.  Where  the  mortgagee  fails  in  replevin,  the  jury  in  assessing  the 
defendant's  damages  should  allow  and  deduct  from  the  value  of  the 
goods,  plus  the  damages  for  detention,  the  amount  shown  to  be  due 
upon  the  mortgage,  Dixon  v.  Atkinson,  8G  Mo.  Ap.  24.    The  vendor  in  a 


DAMAGES.  495 

§  585.  The  same.  Distress  for  rent.  When  the  suit  was 
for  the  replevin  of  a  distress  for  rent,  and  the  tenant  failed  to 
prosecute  his  suit,  and  a  return  of  tlie  property  was  awarded,  in  a 
suit  on  the  bond,  the  suit  was  regarded  as  between  the  owner  of 
a  limited  interest  against  the  owner  of  the  general  title ;  the 
measure  of  damages  was  only  the  value  of  the  limited  interest ; 
that  is,  the  amount  of  rent  due,  and  not  the  full  value  of  the  prop- 
erty replevied."'  So,  when  the  defendant  in  the  replevin  had  not 
paid  for  the  goods,  and  could  not  be  held  liable  to  pay  for  them, 
he  could  not  recover  on  the  bond  any  more  than  the  jury  may 
find  they  would  have  gained  by  the  sale  of  the  goods  if  he  had 
retained  them.'* 

§  586.  The  same.  Where  the  interest  is  an  execution. 
Where  the  interest  of  the  plaintiff  was  only  an  execution  against 
the  defendant,  or  a  lien  on  the  property,  the  damages  should  be 
limited  to  the  amount  of  the  execution  or  lien,  and  the  defendant 
may  show  that  it  is  paid  or  discharged  in  mitigation  of  damages, 
and  the  burden  of  showing  the  amount  of  the  execution,  where  it 
is  relied  upon,  is  on  the  party  who  relies  on  it.'^ 

§  587.  The  same.  As  between  the  owner  of  a  limited 
interest  and  an  intruder.  But  where  the  contest  is  between 
the  owner  of  a  limited  interest  in  a  chattel  and  an  intruder,  who 
has  no  interest  in  the  property,  the  owner  of  the  limited  interest 
is  entitled  to  recover  the  property,  or  its  full  value  ;  because  he 
may  be  liable  to  account  to  the  general  owner."'  Where  the  suit 
is  brought  by  a  bailee,  or  one  holding  a  special  property,  against 
the  holder  of  the  general  title,  he  recovers  the  value  of  his  special 
interest,  and  not  tlie  value  of  the  projierty.  Thus,  if  one  hire  a 
horse  for  a  term,  and  it  be  taken  from  him  by  the  owner,  before 
the  term  expires,  he  could  recover  the  value  of  his  interest,  and 
not  the  full  value  of  the  horse."     The   same   rule  i»n'vails  when 

conditional  sale,  electlnR  to  take  damages  in  lieu  of  the  chattels,  is 
entitled  to  recover  the  balance  due  on  the  price  if  the  value  Is  greater 
than  KU(  h  balance,  otherwise  the  value  of  the  goods,  Hodges  v.  Cum- 
in Ings.  l\r,  Ga.  1000.  42  S.  E.  3'Jl.] 

"David  V.  Bradley.  79  III.  :ilO. 

"Seldner  v.  Smith.  40  Md.  C03. 

"Booth  V.  Ableman.  20  WIh.  21;  Seaman  v.  Luce,  23  Barb.  240. 

"Frel  V.  Vogel,  40  Mo.  l.'iO;  Dllworth  v.  McKelvy.  30  Mo.  l.'iO;  Falon 
V.  Manning,  3.'j  Mo.  271;   Krey  v.  Drahos,  7  Neb.  194. 

"White  V.  Wfbb,  ]',  Gonn.  30ri;  Faulitner  r.  Brown,  13  Wend.  (14; 
IngerJioll   v.  Van   Bokkelin.  7  Cow.  070;    Atkius  v.  Moore.  82  III.  240; 


496  THE    LAW    OF    REPLEVIN. 

the  party  connects  himself  with  the  general  owner  as  bailee,  or 
in  any  way  showing  himself  responsible  to  the  general  owner,  he 
is  entitled  to  recover  the  full  value  as  against  any  one  who,  with- 
out right,  interferes  with  the  property.'" 

§  r»88.  The  same.  Between  the  general  owner  and  the 
owner  of  a  limited  interest.  Tlie  general  rule  may  be  stated, 
that  in  an  action  between  the  general  owner  and  one  having  a 
lien  or  a  limited  interest,  when  the  latter  prevails  he  is  entitled 
to  damages  the  amount  of  his  lien,  or  value  of  his  special  prop- 
erty ; ''  but  as  agent,  a  stranger  who  replevins  property  without 
right,  the  defendant,  no  matter  if  his  interest  l)e  limited,  is  en- 
titled to  a  return  of  the  goods,  or  their  full  value.  This  rule  is 
shown  to  be  very  ancient  in  Lyle  v.  Barker,  5  Binn.  (Pa.)  458, 
which  was  an  action  against  the  sheriflt"  for  trespass  in  breaking 
the  plaintiff's  close  and  taking  pipes  of  wine.  The  wine  belonged 
to  one  Morris,  but  was  lield  by  the  plaintiff  as  collateral  for 
money  lent,  and  the  court  allowed  the  full  value,  for  the  reason, 
that  upon  payment  of  his  claim,  the  plaintiff  was  liable  to  sur- 
render the  wine  or  pay  the  full  value. 

§  589.  The  same.  When  the  plaintiff's  title  is  legally 
divested  after  suit  brought,  and  before  trial,  he  can,  as  against 
the  owner,  recover  nothing  beyond  costs,  and  such  damages  as 
he  may  have  sustained  up  to  the  time  his  title  was  divested;^ 
and  the  court  will  always  hear  evidence  to  show  a  change  of 
ownership  smce  the  suit  began,  or  which  makes  it  improper  to 
award  a  return,  or  full  value  as  damages  for  a  failure  to  make 
return."  And  where  a  return  has  been  awarded,  and  the  suit  is 
on  the  bond,  the  defendants  may  show  any  fact  not  settled  in  the 
replevin  suit  in  mitigation  of  damages ;  but  as  against  a  tres- 
passer, the  defendant  is  entitled  to  a  return  of  the  goods,  or  their 
full  value,  notwithstanding  his  title  may  have  terminated  before 
trial.  So,  when  a  pawnee  of  property  is  liable  to  the  owner  for 
goods,  he  may  recover  the  full  value  as  damages  against  a 
stranger  who  takes  them." 

Rhoads  v.  Woods,  41  Barb.  471;  Davidson  v.  Gunsolly,  1  Mich.  388;  Ben- 
jamin V.  Stremple,  13  111.  468;  Battis  v.  Hamlin,  22  Wis.  669. 

"Booth  V.  Ableman,  20  Wis.  21;  Leonard  v.  Whitney,  109  Mass.  266. 

"Seaman  v.  Luce,  23  Barb.  240;  Rhoads  v.  Woods,  41  Barb.  471; 
Ingersoll  V.  Van  Bokkelin,  7  Cow.  681,  n.  a. 

^Cole  V.  Conolly,  16  Ala.  271. 

"  Leonard  v.  Whitney,  109  Mass.  266. 

"  Lyle  V.  Barker,  5  Binn.  459. 


DAMAGES.  497 

§  590.  Damages  against  officers  for  wrongful  seizure. 
Replevin  agivinst  slierills  aiul  other  niinisteriul  otlk-tTs  for  the 
wrongful  seizure  of  goods  is  of  frequent  occurrence,  unci  the  ques- 
tion of  damages  to  be  awarded  against  officers  in  such  cases,  or  in 
their  favor,  when  they  are  entitled  to  the  return  of  the  goods, 
forms  an  important  part  of  the  chapter  on  damages.  The  law  is 
well  settled,  that  sheriffs  and  otlier  ministerial  officers  are  liable 
in  damages  for  the  wrongful  seizAire  of  goods  under  process.  The 
form  of  the  action,  however,  may  be  trespass,  trover,  or  replevin, 
at  the  election  of  the  party  injured.  Thus,  if  the  sheriff,  with  an 
execution  against  A.,  seize  the  goods  of  B.,  B.  may  sustain  an 
action  against  the  sheriff  for  the  goods,  or  their  value  ;  and  if  the 
goods  are  sold,  or  are  not  returned,  he  may  recover  the  value.  The 
value,  and  not  the  amount  for  which  they  were  sold,  is  the  meas- 
ure of  damages."  Though  when  the  sheriff  seize  and  sell  goods, 
and  the  plaintiff  is  an  assignee,  who  must  have  sold  them  had 
they  come  to  his  possession,  the  jury  may  be  induced  to  find  the 
sum  for  which  the  sheriff  sold  them." 

§  591.  The  same.  Against  officer  acting  in  good  faith. 
As  against  a  sheriff"  acting  in  good  faith  in  the  discliargc  of  his 
official  duties,  exemplary  damages  are  not  allowed  Even  though 
he  should  seize  and  sell  the  goods  of  the  wrong  person,  the  value 
of  the  interest  of  the  party  in  the  property  (not  including  loss  of 
trade  or  character,)  with  interest,  and  reasonable  compensation 
for  any  depreciation  in  the  value,  or  cost  of  replacing  it,  is  the 
proper  measure  of  damages."  In  JSaffell  v.  Wash^  4  B.  Mon.  (Ky.) 
93,  is  was  said  that  the  sheriff  was  not  liable  for  costs  when  lie 
levied  on  exempt  property.  That  a  defendant  in  execution  should 
not  be  allowed  to  resort  to  this  interdicttid  remedy  (replevin,) 
even  for  his  exempt  pr()perty,  excei)t  at  the  certainty  of  paying 
all  the  costs.  But  this  is  contrary  to  the  entire  current  of  the 
law  in  other  States,  and  the  princtiple  would,  if  allowed  to  become 
established,  turn  loose  ui)on  society  a  set  of  licensed  tresi)as.><ers.'* 

"  Pozzonl  V.  Henderson,  2  E.  D.  Smith,  HG;  King  r.  Orsor,  \  Diicr. 
(N.  V.)  431;  Llvor  v.  Orser,  5  Duer.  501;  Whitaker  v.  Whcelrr,  Jt  111. 
441;  RuBBOlI  V.  Smith,  14  Kan.  374. 

"Whltehouse  v.  AtklnHon,  3  Car.  &  1".   (14  !•:.  ('.  L.)  344 

»  FJ«;vprl(lKe  v.  Wel<h,  7  WIh.  4.'i;  narn<'y  v.  DoiikIiihh.  1^2  WIh.  4(;4; 
fJravf'H  r.  SIltlK.  5  WIh.  219;  .MorrlH  r.  Baker,  :>  WIh.  389;  MoHhke  i-.. 
Van  Doren,  16  WIh.  320;  Noxon  r.  Hill,  2  Allen.  215. 

»  Se<f  jtOHt.  {  592. 


498  THE    LAW    OF    REPLEVIN. 

§  592.  The  Same.  Officer  acting  with  malice.  When, 
however,  the  sheriff  ha.s  acted  with  malice  or  fraud,  or  with  design 
to  annoy  or  oppress,  the  process  will  not  protect  him  more  than 
if  he  were  a  private  person."  But  malice  on  the  part  of  the 
plaintilf  whose  process  the  sheriff  is  executing  cainiot  he  given 
in  evidence  against  the  sheriff."  80,  when  the  sheriff  levies  an 
attachment  on  goods  not  the  property  of  the  defendants,**  he  acts 
at  his  peril,  and  is  answerahle,  if  he  makes  a  mistake  ; '"  and  in 
such  case  it  is  no  ground  for  new  trial  that  the  jury  fix  the  dam- 
ages at  a  greater  or  less  sura  than  any  of  the  witnesses  fix  them." 
If  the  sheriff  make  an  excessive  levy,  after  satisfaction  of  the  deht 
by  sale  of  part  of  the  goods,  and  a  return  of  part  only  of  the  un- 
sold goods,  the  value  of  the  goods  not  returned,  and  damages  for 
their  detention,  and  for  any  injury  they  may  have  received,  is 
proper.'* 

§  593.  The  Same.  Where  the  suit  is  by  the  general 
owner.  "Where  the  goods  were  replevied  from  an  officer,  who 
lield  them  on  several  attachments,  by  a  party  having  no  right  to 
them,  the  officer  was  entitled  to  the  full  value  and  damages  (in- 
terest) for  the  detention.  Xor  should  any  deduction  be  made  for 
attachments  which  were  levied  after  the  replevin."  This  rule 
grows  out  of  the  fact  that  the  sheriff  making  a  levy  is  regarded 
as  responsible  to  the  defendant  in  execution  for  any  surplus  there 
may  be  after  satisfying  the  execution.  "Where,  therefore,  the  de- 
fendant in  the  execution  replevies  the  goods,  he  is  regarded  as  the 
general  owner,  and  as  against  him  the  sheriff  is  not  resj)onsible 
to  any  other  person  for  any  surplus  after  satisfying  the  execu- 
tion. The  measure  of  damages,  therefore,  in  such  cases,  is  the 
amount  of  the  execution,  in  case  it  is  less  than  the  value  of  the 
property,  or  the  value  of  the  property  in  case  the  execution  is 
greater,**  as  the  damages  should  not  exceed  the  value  of  the  prop- 
erty, possibly  with  interest  added. 

=■  Nightingale  v.  Scannell,  18  Cal.  315;  Noxon  v.  Hill,  2  Allen,  215; 
McDaniel  v.  Fox',  77  111.  345. 

=^  Nightingale  v.  Scannell,  18  Cal.  315. 

=^Milburn  v.  Beach,  14  Mo.  105. 

=«Ayer  v.  Bartlett,  9  Pick.  156;  Joyal  v.  Barney,  20  Vt.  155. 

"  See  note  to  Ayer  v.  Bartlett,  9  Pick.  156,  citing  many  cases. 

"Waterbury  v.  Westervelt,  5  Seld.  (N.  Y.)  598. 

'^  Farnham  v.  Moor,  21  Me.  508;  Lyle  v.  Barker,  5  Binn.  459. 

**  Jennings  v.  Johnson,  17  Ohio,  154;  Sutcliffe  v.  Dohrman,  18  Ohio, 
186;    Battis  v.  Hamlin,  22  Wis.   669.     See  Coe  v.  Peacock,  14  Ohio  St. 


DAMAGES.  499 

§  594.  The  Same.  V/here  the  suit  is  by  one  without 
right.  But  where  a  party  not  the  defendant  in  execution  replev- 
ies the  property,  and  upon  trial  a  return  to  the  sheriff  is  awarded, 
in  such  case  the  sheriff  is  regarded  as  responsible  to  the  general 
owner  for  the  surplus,  and  the  measure  of  damages  is  the  full 
value  of  the  property  and  interest,  without  regard  to  the  amount 
of  the  execution.'^ 

§  595.  Damages  against  officer  for  losing  bond.  "Where 
the  officer  has  lost  the  bond,  the  defendant  for  whose  benefit  the 
bond  was  given  may  have  his  action  the  same  as  though  no  bond 
had  l)een  taken,  and  may  recover  the  amount  for  which  the  securi- 
ties in  the  bond  would  have  been  liable.^**  The  principle  govern- 
ing in  such  case  is  that  tlie  party  is  entitled  to  be  placed  in  as 
good  a  position  as  if  the  sheriff  had  done  his  duty,  and  the  dam- 
ages in  such  case  are  measured,  not  by  the  amount  of  the  value 
of  the  goods  or  the  defendant's  interest  in  them,  but  the  amount 
which  could  have  been  recovered  if  the  breach  of  duty  had  not 
happened." 

§  596.  The  Same.  For  other  failure  in  his  duty.  If  the 
sheriff  fail  of  his  duty,  wherel)y  a  party  is  injured,  he  is  usually 
responsible  in  damages.  If  on  receiving  a  writ  of  replevin  the 
officer  fail  or  neglect  to  serve  it,  or  if  in  attempting  to  serve  it  he 
is  put  off'  with  vague  information  in  reply  to  casual  inquiries,  he 
is  responsible  to  the  i)arty  for  such  damages  as  he  may  have  sus- 
tained by  such  misconduct ;  '*•  but  the  sheriff  may  negative  the  pos- 
sibility of  any  advantage  to  the  creditor  from  the  performance  of 
his  duty,  and  the  creditor  will  not  be  entitled  to  damages.'"     Thus 

187;  NMagara  Elev.  Co.  f.  McNamara.  2  Hun.  41 G;  S.  C.  50  N.  Y.  Ct. 
Appeals,  653. 

"^  First  .\'at.  Bank  v.  Crowley,  24  Mich.  499;  Farnham  v.  Moor,  21  Me. 
508;  Buck  v.  Remsen.  34  N.  Y.  383;  Dilworth  i'.  McKelvy.  30  Mo.  l.")0: 
Long  V.  Cockrell,  55  Mo.  93;  Fallon  r.  Manning,  35  Mo.  275.  See  Battis 
V.  Hamlin.  22  Wis.  669;  Lyle  r.  Barker,  5  Blnn.  458. 

"Perreau  v.  Bevan,  5  B.  &  C.  284. 

"Aireton  v.  Davis,  9  Blng.  740.  In  an  action  for  not  arresting  on 
mesne  process,  or  p«'rmllllng  a  debtor  to  escape,  a  plea  by  the  officer 
nrr/ativinrj  any  damage  is  a  good  plea.  WIlllaniH  v.  Mostyn,  4  Mcch.  & 
W.  145.  overruling  Barker  r.  Gnen.  2  BIng.  317. 

"HInman  v.  Borden,  10  Wend.  3«;7. 

"  Mayne'H  Law  of  Damages,  HiIh  liilc,  wli<r<  tiiis  (pichtion  in  fully 
and  ably  discussed. 


500  THE    LAW    OF    REPLEVIN. 

\vheu  the  plaintiff  delivered  to  tlie  sheritr  a  writ  directing  him  to 
take  certain  goods  of  the  party  therein  named  as  defendant  there- 
in ;  to  a  suit  for  false  return  for  not  levying,  the  sherilf  was  per- 
mitted to  show  that  the  goods  were  not  the  goods  of  the  party 
against  w^hom  the  writ  issut'd/" 

§597.  In  suits  between  different  officers.  .Suits  are  some- 
times brought  by  one  officer  against  another  to  test  the  relative 
priority  of  the  different  processes  held  by  them.  In  such  cases 
the  rule,  as  laid  down  in  a  case  in  Vermont,  is,  that  damages 
beyond  the  actual  value  of  the  property  should  not  be  given." 

§  598.  Damages  between  joint  owners.  Replevin,  as  we 
have  seen,  cannot  be  sustained  by  one  joint  owner  against  his  co- 
tenant;  but  such  actions  are  sometimes  brought  through  mistake 
or  by  design,  and  the  question  arises,  what  damage  shall  be 
awarded  against  the  plaintiff,  who,  though  he  may  be  a  joint 
owner  in  the  property,  and  equally  entitled  to  possession  with 
the  defendant,  must  fail  in  his  action.  As  a  general  rule  the 
defendant  who  recovers  because  of  the  joint  tenancy  is  entitled 
to  be  restored  to  the  same  position  he  was  before  the  taking  upon 
the  writ,  and  is,  therefore,  entitled  to  judgment  for  a  return, 
otherwise  the  plaintiff  would  gain  all  the  advantage  of  a  victory 
where  the  law  compels  a  defeat.  But  when  in  such  case  the  court 
comes  to  determine  the  question  of  damage,  the  defendant  is  not 
entitled  to  recover  more  than  the  value  of  his  interest  in  the 
goods. " 

§  599.  The  same.  Where  the  plaintift"'s  claim  for  delivery 
under  his  writ  is  based  upon  the  assumption  that  he  is  entitled  to 
possession  of,  and  he  obtains  delivery  of,  the  whole,  he  must,  upon 
failure,  return  the  whole.  Where  the  action  was  brought  by  a 
stranger  against  a  bailee  of  one  joint  owner,  to  whom  the  defend- 
ant is  answerable  for  the  return  of  the  goods  or  their  value,  the 
damages  must  be  the  full  value,  and  not  the  value  of  the  interest 
of  the  bailor." 

*' Stimson  v.  Farnham,  1  Moaks,   (Eng.)   60. 

"  Goodman  v.  Church,  20  Vt.  187. 

*=  Bartlett  v.  Kidder,  14  Gray,  (Mass.)  449;  Wltham  v.  Witham,  57 
Me.  448;  Spoor  v.  Holland,  8  Wend.  44.5;  Jones  v.  Lowell,  35  Me.  538; 
Ingersoll  v.  Van  Bokkelin,  7  Cow.  670;  Mason  v.  Sumner,  22  Md.  312; 
Sutcliffe  V.  Dohrman,  18  Ohio,  185.  See,  also,  Reynolds  v.  McCormick, 
62   111.   412. 

"Russell  V.  Allen,  3  Kern.    (N.  Y.)   178. 


DAMAGES.  501 

§  600.     Effect  of  the  death  or  destruction  of  the  property. 

Questions  frequently  arise  as  to  wliat  etl'eet  tlie  death,  or  destruc- 
tion of  the  property  pending  the  suit,  will  have  on  the  rights  of 
the  parties;  upon  this  question,  the  authorities  with  a  few  excep- 
tions, can  easily  be  harmonized.  It  was  said  in  a  New  York  case, 
that  when  the  property  sued  for  is  a  Ining  animal,  and  it  dies, 
it  is  a  good  plea  to  say  that  it  is  dead.**  This  ruling  was  based 
upon  the  idea  that  the  return  had  become  impossible,  by  act  of 
God  ;*^  but  this  ruling  has  been  questioned  more  than  once.  To 
permit  a  defendant  who  wrongfully  takes  possession,  to  claim  that 
he  holds  it  at  the  risk  of  the  real  owner  and  not  at  his  own,  and 
claim  imnuunty  for  accident,  would  be  unjust,  in  the  extreme. 
The  wrongful  taker  of  pro[>erty,  when  called  upon  to  surrender 
it  to  the  rightful  owner  or  i)ay  the  value,  cannot  defend  himself 
from  judgment  by  showing  his  inability  to  deliver  through  death 
or  otherwise.**  If  the  recovery  of  the  specific  thing  was  the  sole 
object  of  the  action,  of  course  upon  its  death  or  destruction  the 
action  would  terminate  ;  but  the  object  is  to  recover  the  thing 
only  in  case  it  can  be  had,  and  its  alternate  value  in  case  it  cannot 
be  delivered  in  specie.  The  result  is,  that  the  death  or  destruc- 
tion of  the  thing  sued  for,  does  not  defeat  the  action  unless  it  be 
under  circumstances  which  excuse  the  party  from  liability  for  the 
value.*' 

§  Onl  The  same.  If  in  the  action  of  replevin  or  (ictinue, 
the  judgment  for  the  delivery  of  the  property  or  its  alternate 
value,  is  to  be  prevented  by  its  death  or  destruction  pending  the 
suit,  it  is  obvious  that  that  form  of  action  is  inade(|uate  to  icdress 
the  wrong  or  enforce  the  right  to  its  full  extent,  'i'lu-  plaintiff 
must  yield  his  desire  to  obtain  the  specific  jtroperty,  or  he  must 
incur  the  j)eril  of  losing  not  only  the  pro})erly,  but  all  claim  for 
comjMinsation  in  case  it  die  in  the  hands  of  the  wrongful  taker.'" 
Therefore,  in  such  cases,  when  the  properly  has  been  destroyed 
and  caniKjt  be  delivered  or  returned,  the   fact  of  its  destruction 

"Carpenter  t'.  Stevens,   ]2  Wend.  589. 

"See  Melvin  v.  Wlnslow,   1    Fair.    (Me.)    VJ". 

••Caldwell  v.  F'enwkk.  2  Dana.  .133;  Halle  v.  Hill.  13  .Mo.  Glli;  GlbbH  v. 
Bartlett,  L'  \V.  &  S.  (I'a.)  34;  AuKtIn'H  ICx'rs  r.  JoncH,  1  Gllracr.  (1  Va. ) 
341;   Scott  V.  HuKheH.  9  H.  Mon.   101. 

"Carrel  v.  F:arly,  4  HIbl).   (Ky.)   270. 

"See  Suydam  t'.  JenklnH,  3  Sandf.  <M4;  Mlddleton  v.  Bryan,  3  Maul. 
A  S.   1G8. 


502  THE  LAW  OF  REPLEVIN. 

does  not  furnish  any  excuse  for  the  non-payment  of  the  vakie. 
The  New  York  cases  referred  to  were  based  upon  the  hyiwtliesis 
that  the  party  came  rightfully  into  the  possession,  and  was  liable 
only  for  ordniary  care  All  the  analogies  in  cases  wliere  the 
taking  was  wrongful  are  ditto  rent.*'' 

§  ti02.  The  same.  Death  of  slaves  pending  suit  does  not 
affect  the  right  to  judgment  for  value.  The  death  of  slaves 
pending  the  action  for  them  has  often  been  held  not  to  defeat  the 
plaintiff's  right  to  a  judgment  for  them  or  theiiwalue.**  In  Carrel 
V.  Early,  4  Bibb  (Ky )  270,  the  proposition  was  that  the  slaves 
having  died  without  fraud  of  defendant  after  suit  begun,  defeated 
plaintitt's  right  to  their  value  C.  J.  Boyle  said,  "  this  proposi- 
tion cannot  be  maintained.  Were  the  recovery  of  the  specified 
thing  the  absolute  and  sole  object  of  the  action  of  detinue,  the 
destruction  of  the  thing  would  necessarily  defeat  the  action  ;  but 
as  the  object  is  to  recover  the  thing  only  upon  condition  it  can  be 
had,  and  if  not  then  its  value,  it  follows  that  the  action  cannot  be 
defeated  by  the  destruction  of  the  thing  unless  under  circum- 
stances which  would  excuse  the  defendant  from  responsibility, 
lie  who  AvrongfuUy  detains  the  property  of  another  does  so  at  his 
peril,  and  will  be  responsible  to  the  owner,^'  though  the  property 
should  be  destroyed  by  accident,  or  taken  from  him  by  malice." 

§  603.  The  same.  Emancipation.  It  has  also  been  held 
that  where  slaves  had  become  emancipated  before  the  trial,  that 
fact  furnished  no  reason  why  the  plaintiff  should  not  have  judg- 
ment for  their  value,  (suit  begun  in  .Alarch,  1852,  tried  in  18G9.)" 

§  604.  Judgment  when  the  property  is  lost  or  destroyed. 
When  it  appears  that  the  property  was  hopelessly  lost  or  de- 
stroyed, so  that  judgment  for  its  return  would  be  of  no  avail,  a 


"Garrett  v.  Wood,  3  Kan.  231;  Berthold  v.  Fox,  13  Minn.  501. 

'"White  V.  Ross,  5  Stew.  &  Porter,  (Ala.)  123;  Lay  v.  Lawson,  23  Ala. 
377;  Bettis  v.  Taylor,  8  Por.  (Ala.)  564;  Bell  v.  Pharr,  7  Ala.  807;  John- 
son V.  Marshall,  34  Ala.  522;  Carrel  v.  Early,  4  Bibb.  270.  Action  not 
proper  if  slave  died  before  suit  began.  Caldwell  v.  Fenwick,  2  Dana, 
(Ky.)  332;  Barksdale  v.  Appleberry,  23  Mo.  390.  Value  of  use  to  the 
time  of  death.  Haile  v.  Hill,  13  Mo.  612;  Austin  v.  Jones,  1  Va.  341; 
Bethea  v.  McLennon,  1  Ired.   (N.  C.)  523;  Rose  v.  Pearson,  41  Ala.  689. 

'^'Barksdale  v.  Appleberry,  23  Mo.  392;  Rose  v.  Pearson,  41  Ala.  692; 
Feagin  v.  Pearson,  42  Ala.  335. 

"  Wilkerson  v.  McDougal,  48  Ala.  518.  See  McElvain  v.  Mudd,  44  Ala. 
48. 


DAMAGES.  503 

failure  to  render  judgment  for  the  return  was  regarded  as  a  tech- 
nical error,  and  judgment  for  the  value  was  not  disturbed." 

§  605.  Damages  allowed  only  where  the  defendant  is  en- 
titled to  a  return.  The  defendant  is  never  entitled  to  damages 
unless  he  shows  himself  entitled  to  the  property.  Damages  are 
in  fact  only  an  incident  to  judgment  for  a  return,  which  should 
not  be  given  unless  the  defendant  plead  and  show  some  right  or 
title  in  himself.**  Damages  to  a  defendant  are  to  compensate 
him  for  the  loss  he  has  sustained  by  benig  deprived  of  his  prop- 
erty, and  their  award  involves  a  prior  finding  that  the  property 
belongs  to  the  defendant.  It  would  be  a  violation  of  all  the 
principles  of  the  law  to  give  damages  to  one  who  had  no  right  to 
the  property,  and  could  not  show  himself  entitled  to  a  return." 

§  GOG.  Option  of  the  defendant  to  pay  value  or  return  the 
goods  ;  where  allowed.  In  some  of  the  states  it  is  at  tlie 
option  of  the  defendant  in  replevin  to  return  the  goods  or  pay  the 
value  as  assessed  by  the  jury  ;  ^'  but  the  contrary  is  the  more 
connnon  doctrine,  but  this  is  a  purely  local  regulation." 

§  607.  Damages  to  compel  return.  It  not  unfrequently 
happens  that  tlie  defendant  makes  some  disposition  of  the  prop- 
erty to  defeat  tlie  writ  of  return,  and  contents  himself  witii  pay- 
ing the  alternate  judgment  for  the  value.  In  case  the  goods  have 
an  intrinsic  value,  above  the  market  value,  or  a  value  to  the 
parties,  or  one  of  them,  greater  than  the  market  value,  the  dispo- 
sition to  keep  them  and  pay  the  value  may  lead  the  party  to 
adopt  such  a  course  as  this ;  but  where  the  goods  have  a  peculiar 
value  which  makes  their  return  important  to  the  defendant,  the 
jury  in  a  proper  case  will  l)e  warranted  in  fixing  the  value  at  such 

"Brown  v.  Johnson.  45  Cal.  7G;  Wilkerson  r.  McDougal.  48  Ala.  518. 

"  Whitwell  17.  Wells.  24  Pick.  25. 

"Nels  V.  Glllen.  27  Ark.  184. 

"Allen  V.  Fox.  51  N.  Y.  5G9. 

"Mayberry  v.  Cliffe.  7  Cold.  (Tenn.)  121.  fWhere  the  plaintiff  omits 
to  give  a  bond,  and  prosrciites  his  action  without  the  delivery  of  the 
property  lo  him.  and  takes  Judgment  lor  the  value,  he  rerovers  also 
damages  for  the  detention,  Cook  r.  Hamilton.  G7  la.  394.  25  N.  W. 
67C;— but  see  Hasted  v.  Dodge,  la..  35  N.  W.  4(;2,  Colean  Co.  v.  Strong. 
126  la.  598,  102  N.  W.  506.  Bateman  v.  Blake.  81  Mich.  227,  46  N.  W. 
831.  If  the  plaintiff  prevailing,  elects  to  take  a  money  Judgment  In 
lif'U  of  the  goods  he  is  to  be  allowed  IntercHt  from  the  Hei/.ure  of  tho 
goods  to  the  day  of  Judgment.  Uecker  v.  Staab,  114  la.  319,  fG  N.  W. 
305.     Just  V.  Porter,  64  Mich.  5G5,  31  N.  W.  444.] 


504  THE  LAW  OP  REPLEVIN. 

a  sum  as  will  be  likely  to  conipi'l  llicir  return."*  So  where  the 
plaiiititf  sued  for  specified  chattels,  which  had  a  peculiar  value  to 
him,  the  jury,  Avith  a  view  of  inducing  a  surrender  of  the  specific 
goods,  placed  a  value  on  them  higlier  than  would  otherwise  liave 
been  warranted  by  the  evidence,  the  verdict  was  allowed  to 
stand.*'  This  rule,  highly  advantageous  where  it  appears  that 
the  party  to  whom  such  damages  are  awarded  is  clearly  in  the 
right,  is  liable  to  abuse,  and  such  damages  should  never  be  allowed 
in  any  case  unless  it  ai)pears  that  the  party  has  the  property  and 
can  deliver,  and  that  the  increase  in  damages  may  result  in  pro- 
ducing a  delivery,  which  ought  to  be  made,  and  will  otherwise  be 
refused. 

§  G08.  When  and  how  assessed.  The  damages  should  be 
assessed  in  the  replevin  suit.  They  are  but  an  incident  to  the 
proceeding  in  replevin,  and  to  prevent  a  multiplicity  of  suits, 
questions  touching  the  damage  should  be  settled  in  the  replevin 
suit.**     In  ^Missouri,  when  the  judgment  is  again  the  plaintiff,  it  is 

"Mayberry  v.  Cliffe,  7  Cold.  (Tenn.)  120;  Goodman  v.  Floyd,  2 
Humph.   (Tenn.)   60. 

"•Cochran  v.  Winburn,  13  Tex.  143.  But  see,  in  this  connection, 
Hoeser  v.  Kraeka,  29  Tex.  450. 

•^Hohenthal  v.  Watson,  28  Mo.  360;  White  v.  Van  Houten,  51  Mo. 
578;  Bower  v.  Tallman,  5  W.  &  S.  (Pa.)  556;  Redman  v.  Hendricks, 
1  Sandf.  (N.  Y.)  32;  Glann  v.  Younglove,  27  Barb.  480.  [The  damages 
must  be  assessed  in  the  replevin  suit,  Stevens  v.  Tuite,  104  Mass.  328; 
Globe  Co.  V.  Messick  Co.,  136  N.  C.  354,  48  S.  E.  781.  The  judgment 
should  be  in  the  alternative;  and  the  execution  should  direct  the  officer 
to  take  the  goods,  or  if  not  found,  to  collect  the  value.  Id.  And  a  second 
action  after  return  of  the  goods,  to  recover  for  injuries  to,  or  deteriora- 
tion of  the  goods  while  in  plaintiff's  possession,  cannot  be  sustained,  Teel 
V.  Miles,  51  Neb.  542,  71  N.  W.  296.  But  where  the  bond  is  conditioned 
to  pay  "  all  damages  sustained  "  by  defendant,  he  is  not  required  to 
demand  the  assessment  of  his  damages  in  the  replevin,  but  may  defer 
it  until  his  action  upon  the  bond,  Gould  v.  Hayes,  71  Conn.  86,  40  Atl. 
930.  And  even  though  damages  are  assessed  in  the  replevin,  if  they 
were  not  demanded  by  the  answer  they  have  no  basis,  the  judgment  is 
a  nullity,  and  does  not  bar  recovery  of  substantial  damages  in  an  action 
on  the  bond.  Id.  Where  the  plaintiff  discontinues  his  action  the  court 
may  assess  the  damages  without  a  jury,  Lamy  v.  Remuson,  2  N.  M. 
245.  Ordinarily  the  jury  need  find  only  the  value,  interest  being  added 
by  the  court,  in  the  judgment;  but  where  defendant  contends  that 
there  was  an  agreed  price  upon  the  goods,  a  part  of  which  he  has  paid 
before  the  seizure,  the  jury  must  find  upon  this  issue.  Hall  v.  Tillman, 
110  N.  C.  220,  14  S.  E.  745.    And  in  Gordon  v.  Little,  41  Neb.  250,  59  N. 


DAMAGES.  505 

against  him  and  bis  securities  that  they  return  the  property  or 
pay  the  value,  with  damages  and  costs.  The  jury,  therefore, 
which  tries  this  issue  touching  tlie  replevin  should  pass  upon  the 
issues  as  to  damages.  They  should  find  the  value  which  the 
plaintiff  and  his  security  must  pay  in  case  they  fail  to  return  the 
property,  and  should  assess  the  damages.  There  is  no  warrant 
of  law  to  call  a  jury  to  try  part  of  the  case  and  another  part  of 
the  case.*'  This  rule  is,  however,  by  no  means  universal  In 
Iowa,  the  damages  might  be  recovered  in  the  replevin  suit  or  in 
a  separate  action  on  the  bond.*'  In  Maine,  a  similar  rule  ob- 
tained.*' 

§  609.  Generally  dependent  on  local  statute.  This  ques- 
tion however  depends  on  the  statutes  of  the  ditfcrent  States.  No 
general  rule  can  be  stated.  By  the  common  law,  upon  an  omis- 
sion to  have  damages  assessed  in  the  replevin  suit,  the  defendant 
was  entitled  to  have  a  writ  of  inquiry,"  and  unless  the  condition 
of  the  bond  or  some  statutory  prohibition  exists,  such  course 
would  be  permitted  now.  When  the  condition  of  the  bond  is  to 
pay  such  damages  as  shall  be  adjudged,  the  only  safe  course  is  to 
have  the  damages  assessed  in  the  replevin  suit.*^  In  Indiana,  the 
plaintiff  in  a  suit  on  the  bond  is  permitted  to  recover  even  though 
damages  were  not  assessed  in  the  replevin.**  In  Illinois,  the 
securities  are  not  parties  to  the  replevin  suit,  and  evidence  of  the 
as.sessraent  of  damages  in  the  replevin  suit  is  not  admissible 
against  them  in  suit  on  the  bond." 

§  610.  Value  and  damages  should  be  separately  assessed. 
The  value  of  the   ijropurty  and   the  damages  fur  detention,  etc., 

W.  783,  it  was  held  that  the  allowance  of  even  nominal  damaRes.  without 
an  assessment  of  damages  is  error,  contra,  McKoan  i\  Cutler.  48  N.  H. 
370.  When  the  plaintiff  is  non-suit,  he  is  no  longer  an  actor,  and  he  Is 
only  to  be  heard  to  resist  defendant's  claim  for  damages;  the  affirma- 
tive rests  on  defendant,  and  he  has  the  opening  and  close,  Washington 
Co.  V.  Webster,  G8  .Me.  44'J.] 

•'  Hohenthal  v.  Watson,  28  Mo.  360. 

"Hall  r.  Smith,  10  Iowa.  45. 

"In  Washington  Ice  Co.  v.  Webster,  C2  Me.  3(13,  it  wa.s  said  that 
In  case  of  a  nonsuit,  without  assessment  of  damages,  that  they  might 
be  assessed   in  suit  on   tho  bond. 

•♦Humfrey    r-.    .MlK.ialf.   Comb.    11;    Herbert   t'.    Waters,    1    Salk.    205. 

•Fettygrove  v.  Hoyt,  11   Mc  «f.;   Sopris  r.  Lilley,  2  Col.  498. 

"Whitney  v.  Lehmar,  20  Ind.  noO;    Hall  i'.  Smith.  10  Iowa,  47. 

••Shepard  v.  IiuttLTfl«!<l.  41    III.  7S.     See  this  case. 


506  THE  LAW  OP'  REPLEVIN. 

should  be  separately  assessed,  and  in  no  case  should  they  be 
aiualj^aniated.'^''  The  force  of  this  will  be  apparent  wlien  it  is 
considered  that  tlie  claims  for  value  and  for  damages  are  based 
upon  entirely  different  grounds.  Value  is  only  allowed  when  the 
])roperty  cannot  be  had  ;  damages  are  to  compensate  the  party 
for  being  deprived  of  his  property.;  l)ut  by  agreement  of  the 
parties  the  value  and  damages  may  be  assessed  in  one  sum.*' 

§  611.  Recovery  cannot  be  for  a  greater  sum  than  is 
claimed.  Tlie  damages  stated  in  the  writ  or  in  tlie  nan'  is  not 
fixed  with  any  very  nice  attention  to  the  actual  value.  The 
pleader  will  usually  take  good  care  to  fix  it  at  the  outside  value, 
on  the  supposition  that  tlie  jury  would  not  give  him  any  greater 
sum  than  the  value  as  fixed  by  himself.™  In  California  the  right 
to  a  return  must  be  determined"in  the  first  instance  in  the  reple- 
vin suit,  but  if  that  is  dismissed  without  trial  the  parties  are  left 
to  the  remedy  on  the  bond."  The  rule  in  this  action,  as  in  trover, 
does  not  confine  the  jury  to  the  damages  Avhich  were  sustained 
prior  to  the  date  of  the  writ,  but  the  injury  may  be  continued  up 
to  the  date  of  the  trial,"  the  same  as  interest  is  computed  upon 
a  promissory  note  up  to  the  date  of  the  verdict  or  judgment. 

§  G12.  Damages  for  property  severed  from  real  estate. 
When  the  owner  of  real  estate  sues  in  replevin  for  property 
Avhich  has  been  severed  therefrom  he  can  recover  only  the  value 
of  the  property  after  the  severance  ;  not  its  value  as  forming  part 
of  the  real  estate.  The  reason  for  this  rule  will  be  apparent  when 
it  is  considered  that  the  plaintiff  sues  for  his  property  as  his 
chattel,  not  as  his  realty.  He  had  his  election  to  sue  in  trespass, 
in  which  form  he  might  have  recovered  the  damage  to  the  real 
estate ;  but  having  elected  to  treat  it  as  chattel  property  he  can 
only  recover  its  value  as  a  chattel.  Thus,  when  a  fence  was 
removed  from  a  farm,  and  the  owner  replevied  it,  proof  that  it 
was  worth  §200  as  a  fence,  but  the  materials  Avhen  removed  were 
wortli  only  ST 5,  the  plaintiff  could  oidy  recover  the  value  of  the 
materials." 

•"Savers  v.  Holmes,  2  Coldw.    (Tenn.)   259. 

•"M'Cabe  v.  Morehead,  1  W.  &  S.  (Pa.)   515. 

^"Hoskins  v.  Robins,  3  Saund.  320,  n.  1;  Huggeford  v.  Ford,  11  Pick. 
223.  The  plaintiff  cannot  recover  a  greater  sura  than  he  has  claimed 
in  his  declaration.     O'Neal  v.  Wade,  3  Ind.  410. 

"Mills  V.  Gleason,  21  Cal.  274;  Ginaca  v.  Atwood,  8  Cal.  446. 

"Dailey  v.  Dismal  Swamp,  2  Ired.   (N.  C.)   222. 

"Pennybecker  v.  McDougal,  48  Cal.  162. 


DAMAGES.  507 

§  613.  The  same.  When  tlie  suit  was  for  rails,  and  before 
the  service  of  the  writ  the  defendant  built  part  of  them  into  a 
fence,  the  sherilf  could  not  take  the  fence,  and  the  plaintiff  could 
recover  the  value  of  the  rails,  not  the  value  of  the  fence.'*  So  a 
tenant  who  was  dispossessctl  for  non-payment  of  rent,  and  pre- 
vented from  taking  a  chimney  which  he  had  the  right  to  take, 
which  could  not  be  removed  without  taking  down,  the  value  of 
material  unincumbered  by  any  obligation  to  remove  it  was  proper 
measure  of  damages.'^ 

§  G14.  The  same.  Coal  dug  or  timber  cut.  Another  class 
of  cases  arises  where  the  property  has,  by  its  severance  from  the 
realty,  been  increased  instead  of  diminished  in  value  ;  of  which 
coal  dug  from  the  mine  of  another,  or  timber  cut  from  his  land, 
furnish  common  instances.  The  severance  does  not  change  the 
title  to  the  property.  The  owner  may  sustain  replevin,  but  the 
question  of  damages  to  be  given  him  in  case  he  does  not  recover 
the  property  in  specie  is  one  of  more  difficulty.  In  England 
when  the  action  was  trespass  for  taking  coal,  the  value  was 
estimated  at  the  value  when  severed  from  the  realty,  and  not  when 
in  the  mine.'*  In  Illinois,  after  a  full  consideration  of  the  author- 
ities, the  court  followed  substantially  the  rule  inJlartin  \.  Porter^ 
6  Mees.  &  W.  353,  and  gave  the  value  at  the  mouth  of  the  pit, 
less  the  cost  of  carrying  it  there,  allowing  nothing  for  the  digging."' 

§  015.  The  circumstances  under  which  the  severance 
was  made,  and  the  form  of  the  action,  material  to  be  con- 
sidered. The  circumstances  under  whicli  the  property  was 
taken  constitute  a  material  element  in  determining  damag(>s  in 
such  case.  In  a  case  of  trover  the  jury  were  told  that  if  there  was 
fraud  or  negligeiiee  on  the  part  of  the  defendant  they  might  give 
the  full  value  of  the  coal  after  the  removal  ;  but  if  the  defendant 
acted  under  the  lionest  belief  that  he  had  a  right  to  dig  as  he  did* 
value  of  the  coal  in  the  mine  was  the  proper  damages,  as  an  award 
of  the  value  of  the  coal  l)efore  reujoval  will  fully  (•()mpens;ite  the 
plaintiff  for  all  the  damage  he  has  sustained.'*     This  case  of  For- 

"  Bower  v.  Tallman.  5  W.  &  S.  (Pa.)   561. 

"Mooro  V.  Wood.  12  Al)h.  Vr.  H.   (N.  Y.)   393. 

"Martin  v.  Porter,  5  Mees.  &  W.  353;  Wild  i'.  Holt.  !l  M.«m.  &  W. 
672:   Mor»,'an  v.  Powell.  3  Adolph.  &  K.  (43  R.  C  L.)  278. 

"Ill,  &  St.  L.  U.  U.  :<nd  Coal  Co.  v.  OkI«>.  X2  III.  027;  RobortBon  v. 
JoneH.  71   III.  4or,;   ,M«I.can  Co.  Coal  Co.  v.  I.onK.  «l   111.  3r.I». 

"ForHyth  v.  WellH.  41  Pa.  St.  291;  citing  Wood  «'.  Morowood.  (43 
E.  C.   L.)    Adolp.  t  K.  440. 


508  THE  LAW  OF  REPLEVIN. 

syth  V.  Wells  was  considered  in  ///.  cfc  St.  L.  Ji.  R.  ami  Coal  Co. 
V.  0///^,  82  III.  G27,  but  the  court  followed  Morgan  v.  J*owell., 
3  Adolp.  it  Ellis,  278,  (4:}  Eug.  Com.  Law  R.  TIU,)  which  was 
trespass  for  digging  iilaiiitiff's  coal,  where  the  court  held 
that  the  plaintiff  might  recover  the  value  of  the  coal  when  dug, 
allowing  the  defendant  nothing  for  thedigguig,  Init  if  the  defend- 
ant had  moved  the  coal  to  the  mouth  of  the  i)it  he  should  be 
paid  for  his  labor  in  so  doing.  But  in  that  case  Pattkksox,  J., 
said,  in  substance,  if  the  plaintiff  had  brought  trover  or  detinue 
for  the  coal  after  it  was  Ijrought  to  the  pit's  mouth  he  might 
have  recovered  the  value  which  it  then  had  without  deduction. 
But  this  action  was  trespass  for  taking  and  detaching  the  mineral 
from  the  freehold,  and  tiie  value  must  be  regarded  as  attaching  at 
the  moment  the  trespass  was  connnitted.  If  the  defendant  put 
any  expense  on  the  coal  after  the  first  trespass  it  could  not  l)e 
recovered  in  this  action.  It  would,  therefore,  seem  that  when  the 
form  of  the  action  is  replevin  or  trover,  and  not  trespass,  the  rule 
laid  down  in  Forsyth  v  .  Wells^  41  Pa.  St.  291,  A-\ould  be  proper, 
rather  than  the  exceedingly  technical  rule  laid  down  in  Moryan 
V.  Poicell.,  supra.  In  trover  for  the  conversion  of  logs  by  mistake, 
the  court  held  the  measure  of  damages  should  be  a  sum  sufficient 
to  compensate  the  party  for  the  injury  he  had  sustained,  "  and, 
except  in  cases  where  punitive  damages  are  proper,  or  where 
nominal  damages  are  sufficient,  this  rule  is  the  oidy  just  theory.'"' 
In  the  case  of  Winchester  v.  Craig.,  al)Ove  referred  to,  the  court 
most  aptly  illustrates  the  law  in  this  case,  by  supposing  a  party  cut 
trees  by  mistake  and  ships  them  a  short  distance ,  and  another, 
under  similar  circumstances,  cut  timber  and  ships  it  to  Europe. 
In  separate  actions  against  each  the  plaintiff  claims  the  value  at 
the  place  were  the  timber  was  sold.  It  is  very  evident  that 
though  the  value  of  the  standing  timber  was  the  same  in  each 
case,  and  the  actual  injury  to  the  plaintiff  the  same  in  both  cases, 
the  verdict,  if  this  recovery  was  allowed,  would  be  very  different, 
and  he  who  had  spent  the  most  time  and  money  in  giving  the 
timber  any  real  value  would  be  punished  most,  under  no  pretense 
of  compensating  the  plaintiff. 

§  616.     Trees  cut  upon  the  land  of  another  by  mistake. 
When  trees  are  cut  on  the  land  of  another  by  mistake,  the  value 

"Winchester  v.  Craig,  33  Mich.  206;    Northrup  v.  McGill,  27  Mich. 
238. 

"Winchester  v.  Craig,  33  Mich.  206. 


DAMAGES.  509 

of  the  trees  cut  down  is  given  as  the  measure  of  damages,  us  the 
severance  changes  the  property  from  real  to  personal  property, 
but  in  no  way  changes  the  ownership.  The  value  at  the  time  of 
the  severance  is  regarded  as  a  just  compensation.^'  In  a  suit  for 
cutting  timber,  the  form  of  the  action  being  tresjtass  de  bofiis  as- 
jyortads,  the  logs  being  hauled  to  a  certain  landing;  but  the  court 
allowed  only  the  value  at  the  place  where  they  were  cut,  though 
in  trover  the  value  at  the  place  where  found  might  have  l)een 
allowed."  But  there  are  other  cases  where  the  court  allowed  the 
value  less  the  value  of  the  labor  of  cutting,  which  was  deducted.** 
"When  the  taking  was  by  a  willful  trespa.sser,  the  rule  is  different; 
thus,  where  a  trespasser  cut  wheat  on  another's  land,  he  cannot 
deduct  for  the  labor  of  cutting,  but  must  give  the  owner  the  value 
of  the  wheat,  as  though  he  had  harvested  it  himself.**  When  A. 
employed  a  builder  to  furnish  materials  and  build  a  house  on  his 
lot,  and  was  to  pay  for  it  by  conveying  another  lot,  the  builder, 
fearing  loss,  sold  the  house  to  a  person,  who  moved  and  placed  a 
foundation  under  it  on  his  own  lot.  A.  sued  the  purchaser  and 
builder  in  replevin.  Held,  that  the  house  had  become  real  estate, 
and  that  the  iilaintiff  was  entitled  to  tlie  vahie." 

§  617.  The  general  rule  stated  applicable  to  various 
changes  in  the  property.  The  rule  has  been  stated  with  much 
force  and  clearness  as  follows :  When  tlie  defendant's  conduct, 
measured  by  the  standard  of  ordinary  morality  and  care,  which 
is  the  standard  of  the  law,  is  not  chargeable  with  fraud,  violence, 
willful  negligence  or  wrong,  the  value  of  the  jnoperty  taken  and 
converted  is  the  measure  of  just  compensation.  If  the  raw  ma- 
terial has,  after  appropriation,  and  without  such  wrong,  been 
changed  Ijy  manufacturer  into  a  new  si>ecies  of  projjerty,  as  grain 
into  whisky,  grapes  into  wine,  furs  into  hats,  hides  into  leather, 
or  trees  into  lumber,  the  law  either  refuses  the  action,  or  limits 
the  recovery  to  the  vahie  of  the  original  artii-lcs."*  Uut  when 
the  defendant  has  lx;en  guilty  of  any  force  or  fraud  to  wrongfully 

"Martin  v.  Porter.  5  Mees.  &  W.  353;  Morgan  v.  Powell,  3  Adolp.  &  E. 
(43  E.  C.  L.)   278;   Winchester  v.  CralR.  33  Mich.  20ti. 

TuHhlnK  V.  Ix)nKf«.llew,  26  Me.  307. 

••HiinKcrford  r.  Uedford,  29  WIfi.  34r>;  Vouhk  r.  Moyd.  Of.  Pa,  St. 
204;  Single  v.  Schneider,  24  WIh.  2'J9;   Hcrdlc  v.  Young,  65  Pa.  St.  170. 

••Bull  r.  GrlHwold,  I'J   III    431,  fi31. 

■•  Reese  v.  Jared,  15   Ind.    (HarrlKon),   142. 

••SllHb'i'v    .     MrCir.n     c.    mil     «  \     V»    425. 


610  THE  LAW  OF  REPLEVIN. 

deprive  the  plaintiff,  the  rule,  as  stated,  does  not  apply,  and  the 
law  gives  the  owner  the  entire  property,  without  de<luction  for 
the  increased  value  which  the  trespasser's  labor  has  given  it." 
The  intention  of  the  law,  in  all  these  cases,  is  to  do  justice  to  the 
parties.  Where  a  trespasser  takes  the  timber  of  another,  and  cuts 
it  into  wood,  and  burns  it,  or  where  he  takes  cattle,  which  the 
owner  prizes  highly,  and  butchers  them,  the  law  cannot  restore 
the  cattle  or  the  wood  ;  it  cannot  fully  and  completely  protect,  or 
compensate  for  the  injury.  It  can,  however,  approximate  to  it ; 
but  because  a  wrong  has  been  done  to  the  plaintiff,  it  will  not  mend 
the  matter  to  inflict  another  wrong  on  the  defendant.  The  law 
rather  aims  to  protect  the  plaintiff,  but  at  the  same  time  to  inflict 
no  unnecessary  injury  on  the  defendant.®® 

§  618.  Vindictive  damages;  when  allowed.  In  cases 
where  the  taking  or  subsequent  detention  is  accompanied  by  any 
act  showing  malice  or  fraud,  or  that  it  was  done  for  the  purpose 
of  oppression,  or  in  wdllful  disregard  of  the  rights  of  the  other 
party,  the  law  abandons  the  rule  of  compensation,  and  allows  ex- 
emplary damages,  such  as  will  not  only  compensate  the  party  in- 
jured, but  such  other  and  additional  amount  as  will  .serve  as 
a  lesson  to  him  in  the  future,  or  shall  punish  him  for  the  wrong 
committed.®' 

§  G19.  The  general  principles.  The  rules  governing  cases 
of  vindictive  or  exemplary  damages  in  replevin  is  ably  discussed 
in  the  case  of  Whitfield  v.  Whitfield,  40  Miss.  367.  The  rule 
there  laid  down  is,  that  where  the  original  taking  was  wrongful, 
or  where  the  original  taking  Avas  bona  fide,  but  the  subsequent 
detention,  sale  or  disposition  of  the  property,  after  a  knowledge 
of  the  plaintiff's  right,  w^as  in  willful  disregard  of  such  right,  or 
when  the  original  taking  and  subsequent  disposition  of  the  prop- 
s'SMsbury  V.  McCoon,  3  Comst.  381. 
"Warren  v.  Cole,  15  Mich.  271,  citing  many  cases. 
"Cable  V.  Dakin,  20  Wend.  172;  Brizsee  v.  Maybee,  21  Wend.  144; 
Dorsey  v.  Manlove,  14  Cal.  553;  Whitfield  v.  Whitfield.  40  Miss.  366; 
Davenport  v.  Ledger,  80  111.  574;  Mitchell  v.  Burch,  36  Ind.  535;  Biscoe 
V.  McElween,  43  Miss.  556;  Jamieson  v.  Moon,  43  Miss.  598;  M'Cabe  v. 
Morehead,  1  W.  &  S.  (Pa.)  516;  Taylor  v.  Morgan,  3  Watts.  (Pa.)  334; 
Landers  v.  Ware,  1  Strob.  (S.  C.)  15.  For  a  statement  of  the  distinc- 
tion between  compensating  and  vindictive  damages,  see  Hendrickson  v. 
Kingsbury,  21  Iowa,  379;  Graham  v.  Roder,  5  Tex.  141;  Cole  v.  Tucker, 
6  Tex.  266.  Timber  cut  into  boards,  the  enhanced  value.  Baker  v^ 
Wheeler,  8  Wend.  506. 


DAMAGES.  511 

«rty  at  a  price  greater  than  its  market  value  at  the  time  of  tak- 
ing, were  all  in  ignorance  of  the  plaintiff's  rights,  but  the  defend- 
ant, after  knowledge,  seeks  to  ret;iin  the  difference,  as  a  specula- 
tion resulting  from  his  original  wrong ;  or,  when  the  property  has 
some  peculiar  value  to  the  plaintiff",  and  is  willfully  withheld,  in 
all  such  cases  it  is  the  peculiar  province  of  the  jury  to  fix  such 
damages  as  will  be  consonant  with  right,  not  as  a  matter  of  law, 
but  of  remedial  justice,  resting  witli  the  jury.*" 

§620.  The  same.  The  meaning  of  the  terms  "punitive," 
"  exemplary"  and  "vindictive."  This  rule  of  exemplary  dam- 
ages finds  illustration  in  many  cases,  the  general  prineii)le  being 
the  same  in  all,  that  where  the  taking  was  accompanied  by  any 
evident  design  to  annoy,  liamss,  oppress  or  insult,  the  jury  may 
give  such  damages  as  will  fully  comi)ensate  the  injured  party  for 
his  actual  losses,  and  in  addition  thereto  such  sum,  as  from  all  the 
circumstances  of  the  case,  seems  just.  The  terms  punitive  dam- 
ages— damages  to  p>/)u's/i—(.'\em\)h\Yy  damages — damages  for  ex- 
ample, or  to  teach  the  party  a  lesson  for  the  future — or  vindictive 
damages — are,  I  conceive,  frequently  misconstrued.  The  law 
does  not  award  any  unjust  or  revengeful  damages,  but  the  terms 
only  mean  that  in  such  cases  compensation  for  the  actual  loss  of 
property  would  not  be  full  compensation  for  the  injury  actually 

"This  question  is  treated  at  length  in  Sedgwick  on  Meas.  of  Dam- 
age, 6th  Ed.,  p.  544.  See,  also.  Herdic  v.  Young,  55  Pa.  St.  17G;  Dor- 
sey  V.  Gassaway,  2  H.  &  J.  (Md.)  402;  Bruce  v.  Learned,  4  Mass.  614; 
Carey  v.  Bright,  58  Pa,  St.  70;  McBride  v.  McLaughlin,  5  Watts.  (Pa.) 
375;  3  B.  Mon.  363.  See  Farwell  r.  Warren,  51  111.  467;  Walker  r. 
Smith,  1  Wash.  C.  C.  152.  The  question  of  punitive  damages  is  ex- 
haustively discussed  in  Fay  v.  Parker,  53  N.  H.  Rep.  343.  The  con- 
clusion reached  in  that  case  is.  that  in  cases  when  the  action  is  for 
a  tort,  punishable  by  the  criminal  law,  punitive  damages  cannot  be 
assessed,  as  the  defendant  is  liable  to  criminal  punishment;  and  if 
punitive  damages  were  permitted,  he  might  be  punished  twice  for 
the  same  offense,  which  Is  unconstitutional.  Qunre  whether.  In  any 
civil  action,  the  plaintiff  can  recover  punitive  damages.  To  the  same 
effect,  see  Austin  v.  Wilson.  4  Cush.  (Mass.)  273;  Tabor  v.  Hutson,  5 
Ind.  322;  Humphries  v.  Johnson.  20  Ind.  190.  Compare  BIrthard  r. 
Booth.  4  Wis.  72;  Wilson  v.  Mlddleton,  2  Cal.  54;  Cook  i<.  Kills.  6  llill, 
466;  Hoadley  v.  Watson.  45  Vt  2R!»;  McCabc  t-.  Morch.'ad.  1  W.  &  S. 
513i  SchoHeld  v.  P'errerB,  46  I'a.  St.  439.  The  currtnit  of  authority 
JuHtlflcH  the  aBBPHsment  of  punitive  damageH  In  cascH  of  wilful  wrong. 
The  rule  Is  liable  to  great  abuse,  but  ita  neceHHlty  has  b.cn  nmd.-  ap- 
parent. 


612  THE  LAW  OF  REPLEVIN. 

sustained,  and,  therefore,  as  a  matter  of  justice,  the  law  permits 
further  compensation  sufficient  not  only  to  malce  up  to  the  party 
for  all  the  injury  he  has  sustained,  but  to  prevent  the  wrong-doer 
from  deriving  any  profit  from  his  wrongful  act  at  the  expense  of 
the  other.*'  The  terms  "punitive"  and  "  vindictive  "  have  be- 
come so  fixed  in  the  law  that  they  cannot  now  be  got  rid  of,  yet 
they  should  never  be  used  without  explanation  of  their  true  mean- 
ing." The  law  will  not  attempt  to  redress  a  wrong  suftered  by 
the  plaintill"  by  inflictnig  another  wrong  on  the  defendant.  In 
some  cases  the  injuries  are  such  that  they  are  susceptible  of  a  full 
and  definite  money  compensation.  When  this  is  the  case  the 
law  will  not  abandon  a  certain  rule  which  will  do  complete  justice 
for  an  uncertain  rule  which  can  hardly  fail  to  do  injustice.®' 

§  C21.  The  same.  This  question  of  punitive  is  one  of  the 
most  difficult  which  the  courts  have  to  deal  with,  involving  as  it 
does  a  wide  departure  from  the  plain  principles  of  the  common 
law,  often  exposing  a  suitor  to  the  danger  of  being  heavily 
punished  by  what  amounts  to  a  fine  assessed  for  the  benefit  of 
his  opponent.  The  courts  should  exercise  a  most  vigilant  watch 
over  all  cases  where  such  damages  are  claimed,  and  promptly 
suppress  any  attempt  to  recover  them,  except  in  cases  clearly 
within  the  rule,  and  should  promptly  strangle  any  attempt  to  in- 
crease the  amount  of  such  damages  by  an  appeal  to  the  passion 
or  prejudices  of  the  jury.  In  no  case  can  court  or  jury  be  re- 
quired to  exercise  cooler  judgment  or  sounder  discretion  than  in 
the  assessment  of  punitive  or  exemplary  damages. 

§  622.  The  same.  Actual  malice  or  gross  carelessness 
must  be  shown.  The  principal  rule  governing  such  cases  is, 
that  malice  n^ust  appear.  The  mere  doing  an  unlawful  or  injuri- 
ous act  is  not  of  itself  sufficient  to  warrant  the  jury  in  allowing 
anything  beyond  compensatory  damages.  The  act  must  be  shown 
to  be  prompted  by  a  malicious  motive  or  criminal  indifference  to 
obligations,  or  done  under  circumstances  or  in  a  manner  which 
indicates  such  motives.** 

"  Heard  v.  James,  49  Miss.  236;  Wilson  v.  Young,  31  Wis.  576;  Selden 
V.  Cashman,  20  Cal.  57.  The  terms  "  punitive,"  "  vindictive  "  or  "  ex- 
emplary "  damages  have  no  different  signification  in  law.  Chiles  v. 
Drake.  2  Met.  (Ky.)  146;  Brown  v.  Allen,  35  Iowa,  306. 

»=  Detroit  Daily  Post,  etc.,  v.  McArthur,  16  Mich.  452. 

'=  Warren  v.  Cole,  15  Mich.  271;    Winchester  v.  Craig,  33  Mich.  205. 

"Brown  v.  Allen,   35   Iowa,   306;    Seeman  v.  Feeney,  19   Minn.   79; 


DAMAGES.  513 

§  623.  No  general  rule  exists  for  estimating.  No  general 
rule  can  be  laid  down  to  govern  eases  of  this  kind  ;  eaeh  case 
must  be  controlled  by  the  circumstances  which  surround  it. 
"Where  a  trespass  is  committed  in  a  wanton  and  aggressive  man- 
ner, indicating  malice  or  a  desire  to  injure,  a  jury  onght  to  be 
liberal,  but  not  wanton,"  in  compensating  the  party  injnred  in  all 
he  has  lost  in  property,  and,  in  some  cases,  his  expense  incurred 
in  the  assertion  of  his  rights.  There  is,  in  such  case,  no  fixed 
standard  as  to  the  amount  which   should  be  assessed,  the  jury 

Ousley  V.  Hardin.  23  111.  403;  Sclden  v.  Cashman.  20  Cal.  57;  Hyatt  v. 
Adams,  16  Mich.  180.  Vindictive  damages  cannot  usually  be  recovered 
against  a  master  for  the  act  of  his  servant,  unless  he  authorized  or 
ratified  the  act.  Hagan  r.  Providence  &  W.  R.  R.  Co.,  3  R.  I.  88;  Ward- 
robe V.  Calif.  Stage  Co.,  7  Cal.  118;  Milwaukee  R.  R.  v.  Finney,  10  Wis. 
388.  Exemplary  damages  may  be  found  against  one  of  two  defendants; 
but  if  one  of  them  be  innocent  of  malice  or  recklessness,  such  damages 
cannot  be  recovered  against  him.  Becker  v.  Dupree,  75  III.  167.  [In 
the  absence  of  oppression  or  fraud  the  defendant's  damages  are  merely 
compensatory,  LaVie  v.  Crosby,  43  Ore.  612,  74  Pac.  220.  But  where  a 
strong  case  of  wrong,  outrage,  and  oppression  is  shown,  the  jury  may 
allow  exemplary  damages,  Wiley  v.  McGrath,  194  Pa.  St.  498,  45  Atl. 
331;  Pure  Oil  Co.  v.  Terry,  209  Pa.  St.  403,  58  Atl.  814;  Washington  Co. 
V.  Webster,  68  Me.  449.  Exemplary  damages  may  be  given  in  replevin, 
according  to  the  facts,  as  in  any  other  action  for  a  tort,  Burrage  v. 
Melson,  48  Miss.  237.  But  it  has  been  held  otherwise  under  the  statute 
allowing  merely  the  alternative  judgment  for  the  goods  or  their  value 
and  damages  for  the  taking  and  withholding,  Tittle  v.  Kennedy,  71 
S.  C.  1.  50  S.  E.  544.  ^\^lere  a  father,  merely  because  the  daughter 
will  not  unite  in  an  attempt  to  set  aside  the  will  of  her  molher,  ex- 
cludes her  from  his  house,  compels  her  to  sleep  in  an  outhouse  and 
prevents  her  from  obtaining  her  clothing,  exemplary  damages  may  be 
allowed,  Arzaga  v.  Villalaba,  85  Calif.  191,  24  Pac.  656.  Defendants 
purchased  an  ice-house  with  ice  in  it.  the  quantity  not  stated.  At 
a  later  date  they  found  plaintiffs  removing  ice  from  the  premises  and 
interrogated  them  as  to  their  right;  i)laintifFs  refused  to  exhibit  the 
lease  which  they  held,  or  give  any  sati.sfaction  to  the  Inquiry  of  de- 
feniiant,  and  defendant  then  |)reven(ed  them  from  removing  any  more 
of  the  ice;  held,  they  were  not  entitled  to  exemplary  damages.  I'-indlay 
V.  Knickerbocker  Co..  104  Wis.  375.  80  N.  W.  4:u;.  One  who,  by  re- 
plevin, Ib  wrongfully  diuposBessed  of  the  house  which  he  occupies,  and 
bis  family  ejected  and  his  goods  flung  in  the  street,  Ih  not  entitled  to 
exemplary  damages,  Rlewe  v.  McCormack.  11  Neb.  261,  9  N.  W.  88. 
The  clrcumstanres  attending  the  taking  or  detention  need  not  bf 
averred  to  entitle  plaintiff  to  exemplary  dainageH.  Burrage  t'.  Melson, 
aupra.] 

•■•Detroit  Daily  Post  v.  McArthur,  10  Mich.    147. 
33 


514  THE  LAW  OF  REPLEVIN. 

"being  under  the  law  the  sole  judges,  and  responsible  only  for  a 
Avise  and  proper  exorcise  of  tlicir  jiidpnicnt.'-'* 

§  G'i4.  Illustrations  of  the  principles.  The  following  illus- 
trations of  the   rule  will,  it  is  believed,  be  of  material  aid  in  de- 

••  Pacific  Ins.  Co.  v.  Conard,  1  Baldwin.  (U.  S.  C.  C.)  138;  Strasburger 
V.  Barber,  38  Md.  103.  [An  officer  should  not  be  charged  with  the 
value  of  goods  wrongfully  seized,  but  which  he  has  returned  to  the 
plaintiff.  Long  v.  Lamkin,  9  Cush.  361.  The  return  goes  in  mitigation 
of  damages,  Reynolds  v.  Shuler,  5  Cow.  327;  Yale  v.  Saunders,  16  Vt. 
243.  The  plaintiff  in  such  case  recovers  only  damages  for  the  un- 
lawful taking.  Cook  v.  Loomis,  26  Conn.  483.  The  defendant  may 
plead  in  mitigation  of  damages  a  return  of  a  portion  of  the  goods, 
Darnall  v.  Bennett,  98  la.  410,  67  N.  W.  273.  But  it  seems  there  must 
be  an  acceptance  of  the  goods,  Gove  v.  Watson,  61  N.  H.  136.  In  tres- 
pass de  bonis  defendant  cannot  mitigate  the  damages  by  the  return 
of  the  goods  unless  they  are  accepted  by  the  defendant;  nor  by  levying 
upon  them  under  valid  process  against  the  defendant  and  applying 
the  proceeds  to  pay  the  plaintiff's  debt,  Hanmer  v.  Wilsey,  17  Wend. 
91;  nor  in  trover,  Otis  v.  Jones,  21  Wend.  394. 

Taxes  assessed  against  the  defendant  in  respect  of  the  property, 
and  paid  by  the  plaintiff  before  any  distress,  are  not  allowed  to  the 
plaintiff  in  mitigation  of  damages,  Washington  Co.  v.  Webster,  68  Me. 
449.  Where  goods  sold  upon  credit  are  delivered  by  vendor  to  a  car- 
rier with  instructions  not  to  deliver,  and  the  carrier  violates  his 
instructions,  or  delivers  without  authority,  he  will  not  be  permitted  to 
abate  the  recovery  by  proof  of  the  amount  in  fact  paid  by  the  buyer, 
Jellett  V.  St.  Paul  Co.,  30  Minn.  265,  15  N.  W.  237;  but  he  may  show 
payment  in  full.  Id:  or  any  lawful  application  of  the  goods  to  the  use 
of  the  owner;  or  that  the  goods  have  been  restored  to  the  plaintiff  and 
accepted;  or  that  the  proceeds  have  by  due  process  gone  to  pay  his 
debts.  Id. ;  or  any  lawful  claim  or  lien  which  defendant  may  have  upon 
the  goods,  Id.  An  infant  who  has  purchased  a  sewing  machine  condi- 
tionally, the  seller  reserving  title,  with  a  proviso  that  in  case  of 
default  all  payments  made  shall  be  retained  in  compensation  for  the 
use  of  the  machine,  is  not  to  be  allowed  these  payments,  where  for 
his  default,  and  an  attempted  concealment  of  the  machine,  the  seller 
replevies  it,  Wheeler  Co.  v.  Jacobs,  2  Misc.  236,  21  N.  Y.  Sup.  1006. 

Plaintiff  in  replevin  for  a  flock  of  sheep  is  defeated,  and  damages 
recovered  for  the  value  of  the  wool  shorn  from  the  sheep  while  in  his 
possession;  he  is  entitled  to  an  allowance  for  the  reasonable  cost  of 
the  shearing,  but  not  for  the  cost  of  keeping  the  sheep,  Cunningham  v. 
Stoner,  10  Idaho,  549,  79  Pac.  228. 

If  he  appeals  and  reverses  a  judgment  given  against  him,  he  is  en- 
titled to  an  allowance  for  the  keep  of  the  sheep  pending  his  appeal;  it 
would  be  unjust  for  the  appellant  to  bear  the  expense  of  keeping  the 
sheep  while  correcting  the  errors  of  the  trial  court,  Cunningham  v. 
Stoner,   supra.] 


DAMAGES.  515 

termining  how  far  the  courts  will  incline  to  go  in  the  direction  of 
vindictive  damages :  When  plaintiff's  hogs  were  found  in  the 
defendant's  possession  under  circumstances  which  justify  the 
inference  that  he  wrongfully  took  tliem  with  the  intent  to  con- 
vert them  to  his  own  use.  He  knew  that  the  plaintiff  was  hunt- 
ing them,  but  did  not  tell  him  where  they  were.  The  plaintiff 
testified  that  he  lost  two  weeks'  time  and  had  to  stop  his  team 
and  hired  hand  from  the  plow.  The  plaintiff  was  allowed  pay 
for  his  time  sjient  in  hunting  his  hogs  and  his  necessary  expenses, 
in  addition  to  compensation  for  the  decrease  in  value  which  liis 
hogs  had  suffered  while  in  the  defendant's  pos.session.'' 

§  6ii5.  The  same.  So  when  plaintiff's  heifer  was  tiiken  se- 
cretly by  defendant,  he  Avas  allowed  compensation  for  the  time 
spent  in  hunting  for  her.'*  When  the  defendant  took  the  plaint- 
iff's horse  and  wagon,  and  four  days'  time  was  spent  and  other 
expenses  incurred  in  the  pursuit,  a  verdict  for  the  time  and  ex- 
penses was  allowed  to  stand.'^  The  plaintiff  entrusted  fifty  liead 
of  cattle  to  defendant  to  feed  for  the  winter,  that  he  might  have 
them  ready  to  work  with  in  the  spring,  and  the  defendant  ship])ed 
twenty  of  the  best  and  .sold  them  for  1)eef.  The  cattle  were  work- 
cattle  when  delivered  ;  but  the  plaintiff  was  entitled  to  the  value 
at  the  time  of  the  sale.'**  When  plaintiff  fraudulently  sued  out 
a  writ  of  replevin  without  color  of  right,  and  seized  the  defend- 
ant's goods,  the  jury  are  warranted  in  awarding  the  defendant 
exemplary  damages,  as  for  a  willful  trespass.'"' 

§  0*20.  The  same.  In  s>nfd<nn  v.  Jenkins,  3  Sandf.  (X.  Y.) 
024,  the  court  stated  the  general  rule  for  ascertaining  damages  in 
cases  of  trespass,  substantially  as  follows :  "  Add  to  the  value  of 
the  property  where  the  right  of  action  accrued,  such  damages  as 
shall  cover  not  only  every  additional  loss  which  tin;  plaintiff  has 
sustained,  but  any  increase  of  value  which  the  wrong-doer  has 
olitaincd,  or  has  it  in  his  power  to  ol)tain."  This  geneial  rule, 
applied  to  ca,ses  where  punitive  or  vindictive  damages  would  Iks 
improiHif,  seems  to  commend  itself  as  eminently  wise  uud  proper. 

"Mitchell  r.  Bunh.  30  liul.  535. 

-Mlllor  V.  OarllnB.  \2  How.  F'r.  (N.  Y.)  203.  To  sumo  effect,  see 
McDonald  v.  Norlh.  47  Harl).  530. 

••  Bennett  v.  lyockwoofl,  20  Wend    223. 

""Otter  V.  WIlllamH.  21  III.  IIS. 

'•' Brizsee  v.  .Mayhee.  21  Wond.  144;  M'Cabe  v.  Morehead.  1  W.  &  S. 
(Pa.)    513;    15   Am.    L.    Keg.   525. 


516  THE  LAW  OF  REPLEVIN. 

A  different  conclusion  in  terms,  however,  was  reached  in 
^^//.^■c>;^  V.  Jfathetcs,  24  Barb.  290 — in  which  tlie  highest  price  of 
the  property,  at  any  time  after  tlie  conversion  and  before  the 
trial,  was  regarded  as  the  proper  measure  of  damages."" 

§  027.  Party  who  acts  in  defiance  of  another's  rights  is 
responsible  for  all  consequences.  The  action  of  replevin  is 
an  action  in  the  nature  of  a  tort,  and  when  the  act  is  in  fact,  as 
well  as  theory,  a  trespass,  that  is,  where  the  taking  was  in  willful 
defiance  of  the  other  party's  rights,  the  party  is  sup[)osed  to  act 
with  all  the  consequences  before  his  eyes,  in  full  contemplation  of 
all  the  damages  which  may  legitimately  follow  his  act,  and  so  far 
as  damages  are  plahdy  the  result  of  his  wrongful  interference,  he 
is  responsible.""^ 

§  628.  Vindictive  damages  against  officers  of  the  law. 
The  rules  governing  the  assessment  of  vindictive  damages  a])plies 
to  officers  of  the  law  as  well  as  to  individuals,  in  all  cases  w'here 
the  officer  has  acted  with  malice,  or  in  an  unjust  or  oppressive 
manner.  A  contrary  doctrine  would  turn  loose  on  society  a  set 
of  licensed  wrong-doers."*  But  the  malicious  motives  of  the  party 
whose  process  the  officer  is  executing,  cannot  be  given  in  evidence 
against  the  officer.'"^ 

§  G29.  The  same.  Where  an  officer  in  the  bo)Hi  fiih  dis- 
charge of  his  duty  seizes  the  goods  of  the  Avrong  person,  witliout 
any  circumstances  showing  an  intent  to  do  a  willful  injury,  the 
fact  of  seizure  will  not  authorize  exemplary  damages.'"*  When 
the  defendant,  as  sheriff  and  tax-collector,  seized  ten  horses  from 


"^  This  case  is  cited  as  overruling  Suydam  v.  Jenkins,  3  Sandf.  624, 
Biglow  overruled  cases.  While  it  does  not  do  so  in  terms,  its  con- 
clusions are  different.  See  West  v.  Wentworth,  3  Cow.  (N.  Y.)  83;  Com. 
Bank  Buffalo  v.  Kortright,  22  Wend.  348. 

""  Chandler  v.  Allison,  10  Mich.  461,  where  the  question  is  discussed. 
Fultz  V.  Wycoff,  25  Ind.  321;  Dubois  v.  Glaub,  52  Pa.  St.  238;  Douty  v. 
Bird.  60  Pa.  St.  48;  Hanover  R.  R.  v.  Coyle,  56  Pa.  St.  396;  Simmons  v. 
Brown,  5  R.  L  299.  The  rule  governing  cases  of  willful  trespass  is 
the  same  substantially  in  all  forms  of  action.  See  ante.  Heard  v.  James, 
49  Miss.   236. 

"'Nightingale  v.  Scannell,  18  Cal.  315;  Russell  v.  Smith,  14  Kan. 
374;    Noxon  v.  Hill,  2  Allen,  215. 

'*  Nightingale    v.    Scannell,    18    Cal.    315. 

"^'Beveridge  v.  Welch,  7  Wis.  465;  Phelps  v.  Owens,  11  Cal.  25; 
Selden  v.  Cashman,  20  Cal.  57;   Williams  v.  Ives,  25  Conn.  573. 


DAMAGES.  517 

a  cattle  drover,  and  afterwards  returned  some  of  them,  the  drover 
proved  that  the  cattle  could  ouly  be  driven  by  the  use  of  his 
ti-ained  horses,  etc.,  and  tliut  the  tax  warrant  was  void  ;  but  as 
there  were  no  circumstances  .•showing  an  intent  to  do  a  willful 
injury,  the  value  of  the  property  and  interest  only  was  allowed. 
The  warrant  in  this  case,  though  void  and  properly  excluded  as  a 
justification  or  defense,  was  proper  evidence  to  show  the  good 
faith  of  the  offieer.'"'  In  trespass  against  a  sheriff  for  wrongfully 
seizing  and  selling  goods,  where  no  circumstances  of  aggravation 
appear,  the  action  is  regarded  as  an  action  of  trover,  and  value 
only  is  allowed.'"'* 

§  630.  Recoupment  and  set-off  accounts  cannot  be  ad- 
justed in  replevin.  Accounts  cannot  be  adjusted,  nor  set-off 
allowed  in  the  action  of  replevin  or  trover.'**  The  nature  of 
actions  for  tort  does  not  allow  an  examination  into  counter-claims 
of  indebtedness  or  damages.  This  is  especially  the  ca.se  in  re- 
plevin. The  plaintiff  .sued  for  specific  articles,  and  damages  for 
their  wrongful  detention,  and  it  is  contrary  to  the  s[)irit  of  tlie 
law  to  allow  an  off-set  to  be  investigated  in  cases  of  a  suit  for  the 
recovery  of  chattels  wrongfully  withheld. 

§  631.  But  questions  of  set-off  may  be  investigated  in  cer- 
tain cases.  It  does  not  follow,  however,  that  the  questions  of 
set-off  or  recoupment  cannot  be  investigated  in  replevin.  When 
property  is  distrained  for  rent,  the  plaintitt'  may  show  that  the 
landlord  failed  to  keep  his  covenants  to  furnish  lumber  for  a  fence, 
and  so  show  damage  Cfjual  to  the  rent,  and  thereby  defeat  the 
distress;""  but  the  law  does  not  permit  a  wrongful  taker  to  set 
up  an  account  to  justify  his  taking. 

§  632.  Illustrations  of  the  rule.  When  a  note  is  sent  to  an 
attorney  for  collection,  and  he  is  sut-d  in  trover  for  the  value  of 
the  note,  he  may  recoup  the  vahu;  of  his  services  in  collecting,'" 

'•' Dorsey  v.  Manlove.  14  Cal.   555. 

'"Phelps  V.  Owens,  11  Cal.  25;   Brannin  v.  Johnson,  19  Me.  3G1. 

••Otter  V.  Wlllianas,  21  111.  120;  Stow  v.  Yarwood,  14  III.  427;  Keagpy 
r.  Hite,  12  111.  101;  Streeter  r.  Streeter,  43  111.  155.  [Unless  some 
special  equity  is  shown;  e.  g.,  non  leHldencc  or  Insolvency,  and  such 
special  circumstances  must,  it  seemK.  be  pleaded,  Hell  f.  Oher  Co.,  Ill 
Ga.  668.  36  S.  K.  904.] 

"•LIndley  v.  Miller,  67  111.  248;  Falrmiiii  r.  I-Mu«k.  5  Wiitts.  516; 
Phillips  I'.  MonRcs,  4  Whart.  225;  Pe(  k  r.  Mnwen.  48  III.  55;  Peterson 
V.  Halght,  3  Whart.   (Pa.)    150;   Warner  i;    Caulk.  3  Whart.   (Pa.)    193. 

'"Turner  r    Rein-r,  r.8  111    265 


518  THE  LAW  OF  REPLEVIN. 

under  plea  of  general  issue.'"  Replevin  for  wheat ;  the  defend- 
ant justitied  the  detention  on  the  ground  that  he  had  a  lien  as  a 
warehouseman  for  storage,  and  the  i)laintilf  eontcnded  that  some 
forty  bushels  of  wheat,  equal  in  value  to  the  storage,  were  de- 
stroyed. //«'/(/,  proper  matter  for  investigation  in  replevin,  and 
that  the  damage  might  off-set  or  extinguish  the  lien."^  A  lien 
for  freight  is  a  proper  matter  of  recoupment  when  a  carrier  is 
sued  in  trover  for  goods  lost;"*  and  generally  whatever  demand 
the  defendant  has  growing  out  of  the  sivne  subject  matter  as  the 
plaintiff's  claim,  may  he  recouped."* 

§  633  Set-off  to  suit  upon  bond.  Suit  on  the  bond  is  in  the 
nature  of  a  contract,  and  set-off  or  recoupment  properly  pleaded, 
may  be  shoAvn,'" 

'"Babcock  v.  Trice,  18  111.  420. 

"'  Babb  V.  Talcott.  47  Mo.  343. 

"•Saltus  V.  Everett,  20  Wend.  267. 

'"Streeter  v.  Streeter,  43  111.  155;  Sears  v.  Wingate,  3  Allen,  103. 

"•  Balsley  v.  Hoffman,  13  Pa.  St.  603. 


PARTIES. 


519 


CHAPTER   XIX. 


PARTIES. 


Section. 

Parties  who  may  be  plaintiff 
and  defendant  ....  634 

Owners  of  distinct  interests 
cannot  be  joined  ;  joint  own- 
ers must  bo       .         .  .  G3o 

Trustees,  executors  and  admin- 
istrators may  be  plaintiffs       .  G36 

Suit  against  an  executor  or  ad- 
ministrator     ....  637 

A  parish  or  corporation  maj' 
bring  the  action       .        .        .  638 

Whether  an  assignee  of  prop- 
erty in  the  possession  of  an- 
other can  sue   ....  639 


Section 
Sale  of  property  permitted  not- 
withstanding adverse  po.sses- 
sion  of  another         .         .         .  640 
The  same.     Purchaser  may  re- 
cover          641 

The  same.     Illustrations   .        .  642 
A  father  may  sue   for  property 

of  his  minor  child  .         .         .  643 
Servant  cannot  sue  for  his  mas- 
ter's goods        ....  644 
Receiptor  of  an  officer        .         .  645 
Attaching  creditor    not    liable 

jointly  with  the  offieer   .        .  646 
Minor  cannot  sue        .        .         .  647 


§634.  Parties  who  may  be  plaintiff  and  defendant.  Tlie 
party  whose  legal  riglit.s  have  been  invaded  is  the  jirojier  party 
plaintitT  in  all  ca.ses,  except  when  he  labors  tnider  .some  personal 
disiiualiticalion,  such  as  infancy,  insanity,  or  the  like.  In  replevin 
the  person  having  the  right  to  immediate  and  exclusive  possession 
is  the  j)roper  plaint  iff,  and  the  person  who  has  the  actual  jtosses- 
sion  is  the  proper  defendant.  The  action  is  sometimes  permitted 
against  one  who  has  had  possession  of  the  property  and  has  made 
away  with  it.  The  exceptions  to  the  general  ride  have  been 
suited.'  Where  the  supervisor  of  a  township  is  reciuired  by  law 
U)  keep  and  preserve  all  books  and  papi-rs  bclotiging  to  his  oftice, 
he  may  maintain  rej)levin  for  such  books  or  jiapcrs  against  any 
oTii-  who  assumes  to  tike  them.'     There  appears  to  be  no  authority 


•  .S(;e  antf^.   H   H.'i  an<I   Hfi. 

•Phenix  V.  Clark,  2  filbbs.  (Mich.)  327. 


520  THE  LAW  OF  REPLEVIN. 

for  allowing  a  stranger  wlio  claims  an  interest  in  tlie  property  to 
come  in  and  he  made  a  party,  and  have  his  rights  litigated,  though 
such  course  would  not  violate  any  principle  of  the  law.  An  in- 
dependent replevin  suit  against  the  plaintiff  in  possession  has  been 
allowed.  This  rule  has  been  carried  so  far  that  when  goods  are 
replevied  from  an  agent  or  bailee,  the  owner,  if  a  stranger  to  the 
suit,  has  been  allowed  an  independent  replevin  suit  against  the 
plaintiff  in  the  first  suit,  and  not  driven  to  appear  and  defend  the 
suit  against  his  agent.^ 

§  635.  Owners  of  distinct  interests  cannot  be  joined ;  joint 
owners  must  be.  The  action  cannot  be  sustained  by  joining 
several  parties  owning  several  and  distinct  interests.  The  interests 
of  all  when  aggregated  may  amount  to  the  entire  property,  yet 
they  are  several  and  cannot  be  recovered  in  a  joint  judgment.* 
But  all  the  joint  owners  or  joint  tenants  must  join ;  the  owner  of 
a  part  has  no  exclusive  right  to  possess  the  whole.*  When  parties 
jointly  cultivate  lands,  they  may  be  regarded  as  joint  owners  of 
the  crop,  and  all  must  join  in  an  action  for  its  recovery  or  value.* 
So  when  mills  are  worked  on  shares,  the  owner  and  occupant  may 
be  considered  as  tenants  in  common  of  the  product,  and  may  join 
in  an  action.'  Where  a  society  contributed  money  for  the  relief 
of  the  members,  wdiich  was  put  in  a  box  and  entrusted  with  one 
member,  he  was  not  permitted  to  bring  trover  against  another 
member  who  took  it  from  him  ;  *  but  if  the  box  with  the  funds 
was,  by  agreement  of  all,  left  with  one  for  safe  keeping  and  to 
disburse  on  the  order  of  the  society,  no  reason  is  perceived  why 
he  might  not  have  sustained  replevin  for  it  against  any  one  who 
took  it.®  So  the  agent  of  several  owners  of  a  whaling  vessel,  who 
has,  by  usage  of  the  port,  authority  to  sell  the  cargo  and  distribute 
the  supplies,  may  sustain  replevin  against  any  of  the  joint  owners 
who  may  refuse  to  deliver  it  to  him ;'"  but  in  such  case  his  right 
must  be  irrevocable.     If  one  of  the  joint  owners  may  revoke  the 

'White  V.  Dolliver,  113  Mass.  400.    Compare  Globe  Works  v.  Wright, 
106  Mass.  207. 

♦Chambers  v.  Hunt,  18  N.  J.  L.  380. 

''See  ante.  Chap.  VI. 

"Putnam  v.  Wise,  1  Hill.  235. 

'Rich  V.  Penfield,  1  Wend.  379. 

'Holliday  v.  Camsell,  1   Durnf.  &  E.  658. 

•Newton  v.  Gardner,  24  Wis.  232;   Corbett  v.  Lewis,  53  Pa.  St.  322. 

"  Rich  V.  Rider,  105  Mass.  307. 


PARTIES.  521 

authority,  the  refusal  to  deliver  will  be  a  revocation."  But  trover 
may  be  brought  by  one  joint  tenant  by  liis  co-tenant  for  joint 
property  which  the  defendant  has  destroyed."  When  one  tenant 
in  common  takes  all  the  chattels,  the  co-tenant  hath  no  action, 
but  may  retake  them  if  he  can." 

§  G36.  Trustees,  executors  and  administrators  may  be 
plaintiffs.  The  action  may  be  sustained  by  trustees  when  they 
are  entitled  to  the  possession  of  chattels  in  that  capacity  ;  '*  or  by 
one  entitled  to  possession  for  the  use  of  another ;  '^  or  by  an  exe- 
cutor or  administrator  in  his  capacity  as  representative  of  the 
deceased.'*  Such  a  one  can  also  sue  in  his  individual  capacity  in 
cases  where  he  is  individually  liable."  Where  brouglit  by  an 
executor  or  administrator,  for  a  taking  or  detention  from  the  de- 
ceased in  his  lifetime,  tlie  plaintiff  must  show  the  right  of  pos- 
session in  the  deceased,  his  death,  together  witli  the  legal  qualiti- 
cation  of  the  plaintiff  as  such  executor  or  administrator." 

§  637.  Suit  against  an  executor  or  administrator.  When 
the  suit  is  against  an  executor  or  administrator,  it  shoukl  be 
against  him  individually;  his  taking  or  subsequent  detention  is 
not  the  act  of  the  estate,  but  of  himself  as  an  individual."     An 

"See  Hunt  v.  Rousmanier,  8  Wheat.  174;  Roberts  v.  Wyatt,  2  Taunl. 
268. 

"Wilson  V.  Reid,  3  Johns.  174. 

"Coke  on  Lit.,  tit.  Trover. 

"Baker  v.  Washington,  et  al.,  5  Stewart  &  P.  (Ala.)  144. 

"Pearce  v.  Twitchell,  41  Miss.  344. 

"Cravath  v.  Plympton,  13  Mass.  454;  Hambly  v.  Trott,  1  Cowp.  374; 
Cumn.ings  v.  Tindall,  4  Stewart  *:  P.  (Ala.)  3G1;  Allen  and  wife  v. 
White,  Admr.,  16  Ala.  181.  [An  executor  may  replevy  chattels  per- 
taining to  the  estate  of  the  testator.  Cain  v.  Cain.  20  N.  Y.  Sup.  45. 
An  administrator  may  maintain  replevin  in  his  representative  capac- 
ity, The  State  v.  Farrar,  77  Mo.  175.  Under  the  code  of  Arizona 
replevin  survives  to  the  executor.  Billups  r.  Freeman,  5  Ariz.  2(!8.  52 
Pac.  367. 

A  mere  bailee  transmits  no  title  to  his  administrator,  niemuller  t'. 
Schnieder,  62  Md.  547.  Executor  may  sue  in  his  individual  cajiaclty 
for  Roods  mortgaged  to  him  as  executor,  or  for  goods  mortgaged  to  the 
testator;  and  suing  as  executor,  may  recover,  without  cviilcnfe  of  tho 
reprcH«ntatlve  capacity,  if  entitled  to  recover  in  his  individual  capac- 
ity. Knoche  r.   Perry,  'JO  Mo.   Ap.   483.] 

"Patchen  v.  Wilson,  4  Hill,  51*;  Branch  r.  Branrh.  fi  Fla.  315;  Cur- 
lisle  V.  Burley,  3  Gr.   (Me.)   250;   HoHIh  v.  Smith,  10  Kast.  293. 

"Halleck  v.  Mixer.  16  Cal.  574;  Branch  v.  Branch,  6  Fla.  31G. 

"Smith   V.   Wood.   31    Md.   293. 


522  THE  LAW  OF  REPLEVIN. 

administrator  cainiot  in  his  oflieial  capacity  commit  a  tort.'" 
When  the  taking  was  by  the  deceased  in  his  lifetime,  and  the 
property  is  detained  by  tlie  acbninistrator  or  executor,  such  facts 
may  be  alleged  and  proved  in  an  action  against  the  latter." 

§  G38.  A  parish  or  corporation  may  bring  the  action.  In 
jNIassachusetts,  where  tlie  parocliial  system  prevailed,  the  action 
was  permitted  in  the  name  of  a  parish  for  the  recovery  of  its 
records."  It  will  also  lie  by  or  against  a  corporation  ;  ^  but  the 
corporation  must  sue  in  its  corporate  name  and  capacity.  Indi- 
vidual members  composing  the  body  cannot  assert  the  right  of 
the  corporation."  It  has  been  said  that  replevin  would  not  lie 
against  a  corporative  aggregate,  the  reason  being  that  such  body 
could  only  distrain  by  bailiff,  and  the  bailiff  Avould  be  the  proper 
defendant  in  a  replevin  suit  of  the  distress.'^  This  doubtless  was 
in  conformity  to  the  old  rule  ;  but  in  modern  jurisijrudence  a 
different  practice  has  si)rung  up.  It  has  been  held  that  trespass 
for  assault  and  l)attery  would  not  lie  against  a  corporation,  for 
the  reason  that  such  a  tort  could  only  be  committed  by  some 
person,  while  a  corporation  had  no  tangible  existence  ; '®  but  this 
case  was  subsequently  considered  in  an  Illinois  case  and  its 
authority  denied  ; "  and  the  latter  case  is  doubtless  the  true  ex- 
ponent of  the  law  on  this  subject.  Any  other  rule  would  enable 
a  corporation  to  employ  a  worthless  bailiff,  and  deprive  the 
plaintiff  of  all  the  benefit  of  the  remedy.''* 

§  639.     Whether  an  assignee  of  property  in  the  posses- 

^"'Rose  V.  Cash,  58  Ind.  278.  [But  in  The  State  v.  Farrar.  77  Mo.  175, 
it  was  held  that  where  judgment  goes  against  an  administrator  for  the 
value  of  goods  obtained  by  him  upon  a  writ  of  replevin,  it  should  be 
expressed  to  be  de  bonis  intestati.  and  that  the  surety  in  the  replevin 
bond  given  by  an  administrator,  suing  as  such,  who  has  satisfied  the 
judgment  against  the  administrator,  may  recover  the  amount  paid,  from 
the  administrator  and  the  sureties  in  his  official  bond.] 

"Brewer  v.  Strong's  Exrs.,  10  Ala.  965;  Easly  v.  Boyd,  12  Ala.  685. 

^  Sudbury  v.  Stearns,  21  Pick.  148. 

="  Beech  v.  Fulton  Bank,  7  Cow.  (N.  Y.)  485;  Maund  v.  Monmouth 
Canal,  1  Carr.  &  Marsh,  606;  Fayette  Ins.  Co.  v.  Rogers,  30  Barb.  491. 

='  Bartlett  v.  Brickett.  14  Allen,  62. 

^  Barb,  on  Parties,  214. 

="Orr.  V.  Bank  of  the  United  States,  1  Ham.  (O.)  37;  Bradley  on 
Distresses,  91. 

="C.   &  A.  R.  R.   r.  Dalby,  19   111.   353. 

^See  C.  &  N.  W.  Ry.  v.  Peacock,  48  111.  253,  where  trespass  was  sus- 
tained against  a  corporation. 


PARTIES.  523 

sion  of  another  can  sue.  The  question  as  to  whether  the 
owner  of  goinls  whicli  have  been  wrongfully  taken  can  transfer 
the  property,  and  with  it  a  cause  of  action,  is  one  upon  which  the 
authorities  are  at  variance.  By  the  common  law,  the  right  of 
action  was  not  assignalile.  The  owner  of  jiroperty  in  the  posses- 
sion of  another  who  claimed  to  own  it  Avas  looked  upon  as  having 
a  right  of  action  which  he  must  proceed  upon  in  liis  own  name, 
or  forego  his  right.  He  was  not  permitted  to  sell  and  transfer 
this  right  to  sue  to  another.^*  The  term  "  choose  in  action  "  in- 
cludes all  rights  to  personal  property  not  in  possession,  which 
may  be  enforced  in  an  action  at  law,  and  is  not  limited  to  damages 
recoverable  for  breach  of  contract.*''"  And  choses  in  action  were 
not  assignable  at  the  common  law,  and  especially  the  right  to  sue 
for  a  tort  was  tlie  personal  privilege  of  the  party,  and  not  trans- 
ferrable. 

§  640.  Sale  of  property  permitted,  notwithstanding  ad- 
verse possession  of  another.  The  right  to  sue  in  replevin  has 
therefore  been  denied  to  an  assignee  of  property  in  the  possession 
of  another.  This  was  placed  upon  the  ground  that  the  assign- 
ment was  a  mere  transfer  of  a  right  to  sue,  or  a  right  to  litigate, 
arising  out  of  a  tort.''  Statutory  changes,  however,  have  been 
made  in  many  of  the  States,  which  do  away  with  the  common 
law  rule,  and  permit  an  assignment  in  such  cases,  and  allow  the 
assignee  to  »ue  in  his  own  name.''^  Cases  are  numerous  in  modern 
practice  where  the  assignment  has  been  regarded,  not  as  a  trans- 
fer of  a  cau.se  of  action,  with  the  right  to  litigate,  but  as  a  sale  of 
the  property.^'  The  courts  hold,  that  when  the  owner  of  property 
elects  to  part  with  it,  and  does  sell  it  to  one  who  is  competent  to 
acquire  title,  the  wrongful  act  or  trespass  of  a  third  party  sliall 
not  be  permitted  to  defeat  a  contract  otherwise  valid  and  com- 
plete."    The  reasoning  of  IIallet,  C.  .1.,  in    llnntttitr  v.  HarttlK^ 

■1  Ch.  Plea.  15;  O'Keefe  v.  KelloRK,  15  111.  ZWi\  McGoon  r.  Ankeuy.  11 
III.  558;  Clapp  v.  Shepard.  2  Met.  127. 

"Gillet  V.  Fairchild.  4  Denlo,  81. 

"Naah  v.  Frerlerlcks.  12  Abb.  Pr.  R.   147,  cases  la.st  cited. 

"Lazard  v.  Wheeler,  22  Cal.  140. 

"Cumnalngs  v.  Stewart.  42  Cal.  230;  McKee  v.  Judd,  2  Kernan,  022; 
Hoyt  V.  Thompson.  1  Seld.  347;  Hall  r.  Robinson,  2  Comst.  29r>;  North 
V.  Turner.  9  S.  ft  R.  244;  iX-Wolf  r.  Harris,  4  Mason.  r)30;  Cass  v. 
N.   Y.  k  N.   H.   R.   R.,    1    K.   I).   Smith.   522, 

"Webber  v.  Davis.  44  Me.  147;  MorKun  r  Hra<!l«y.  .'{  Hawks.  (  N.  C.) 
659. 


524  THE  LAW  OF  REPLEVIN. 

carries  considerable  force  in  support  of  this  doctrine.  lie  says, 
in  substance,  that  "  the  taking  and  detention  of  property  by  a 
wrong  doer  does  not  deprive  tlie  owner  of  the  power  of  making  a 
valid  sale  of  it.  The  purchaser,  upon  giving  the  holder  notice  of 
the  transfer,  may  demand  tlie  property,  and  upon  refusal,  may 
maintain  an  action  for  tlie  wrongful  detention.  *  *  *  When  the 
vendor  and  vendee  of  property  are  of  an  agreeing  mind,  where 
one  intends  to  sell  and  deliver,  and  the  other  to  accept,  the  object 
sought  to  be  obtained  cannot  be  defeated  by  the  wrongful  act  of 
a  third  person,  who  has  no  other  title  than  naked  possession."  '* 

§  G41,  The  same.  Purchaser  may  recover.  In  addition 
to  the  soundness  of  this  reasoning,  the  rule  is  supported  by  many 
well  considered  cases.**  Lazard  v.  'Wheeler,  22  Cal.  140,  was  a 
case  where  this  question  was  presented,  but  decided  on  the 
authority  of  the  code  of  that  State,  though  the  opinion  of  the 
court  clearly  indicates  that,  aside  from  the  provisions  of  the  code, 
the  action  might  be  brought  by  an  assignee.  In  Tome\.  Dubois, 
6  Wall.  (U.  S.)  548,  the  Supreme  Court  of  the  United  States  says, 
that  owners  of  personal  property  are  not  obliged  to  treat  the  acts 
of  third  persons,  who  invade  their  rights  of  property  or  possession, 
as  a  conversion.  They  may  elect  to  waive  the  tort,  and  in  such 
case  may  sell  the  property,  and  the  purchaser  may,  after  demand, 
sustain  trover  or  replevin. 

§  642.  The  same.  Illustrations.  The  assignee  of  a  note, 
and  chattel  mortgage  to  secure  it,  may  sustain  replevin  for  the 
mortgaged  property  upon  condition  broken."  Goods  wliich  have 
been  seized  by  the  sheriff  on  process,  may  be  sold  by  the  owner. 
This  is  not  regarded  as  a  sale  of  the  cause  of  action,  but  of  the 
goods.'*     When  the  plaintifif  in  replevin  delivered  the  chattel  to 

"Hanauer  v.  Bartels,  2  Col.  522.  [Hall  v.  Robinson,  2  N.  Y.  293, 
but  the  endorsement  of  a  writing,  evidencing  the  purchase  of  goods 
upon  credit,  the  promise  to  pay  the  price,  and  that  the  title  remains 
in  the  vendor,  does  not  entitle  assignee  to  maintain  replevin.  Roof  v. 
Chattanooga  Co.,  3G  Fla.  284.  18  So.  597.] 

"Cass  V.  N.  Y.  &  N.  H.  R.  R.,  1  E.  D.  Smith,  522;  McGinn  v.  Worden, 
3  E.  D.  Smith,  355;  Hall  v.  Robinson,  2  Comst.  295;  Cartland  v.  Morri- 
son. 32  Me.  190;  The  Brig  Sarah,  etc..  2  Sumn.  (U.  S.  C.  C.)  211;  Hall  v. 
Robinson,  2  Comst.  (2  N.  Y.)  293;  Parsons  v.  Dickinson,  11  Pick.  354; 
Carpenter  v.  Hale,  8  Gray,   (Mass.)   157;   Webber  v.  Davis,  44  Me.  147. 

"Barbour  v.  White,  37  111.  165;  Hopkins  v.  Thompson,  2  Port.  (Ala.) 
434. 

"Coghill  V.  Boring,  15  Cal.  218. 


PARTIES.  525 

his  bondsman  as  his  security,  and  was  afterwards  declared  bank- 
rupt, the  security  was  permitted  to  recover  in  the  bankrupt's 
name,  for  his  own  benefit.'* 

§  643.  A  father  may  sue  for  property  of  his  minor  child. 
A  fatlier,  being  the  natural  guardian  of  his  niiuor  cliildren,  wiien 
they  have  no  other  guardian,  may  sustain  replevin  for  their  per- 
sonal property,*"  or  the  infant  may  sue  by  his  guardian  or  next 
friend  ;  but  a  father  would  not  be  liable  for  a  willful  t;iking  by 
his  minor  child,  unless  he  in  some  way  countenance  or  encourage 
it,*'  the  minor  himself  being  liable  for  his  torts."  A  guardian  may 
maintain  the  action  for  property  belonging  to  his  ward,  of  which 
he  is  entitled  to  possession." 

§  044.  Servant  cannot  sue  for  his  master's  goods.  A 
mere  servant  who  has  possession  of  goods  by  delivery  from  his 
master,  which  the  master  may  at  any  time  put  an  end  to,  has  not 
such  property  or  right  of  possession  as  will  enable  him  to  sustain 
this  action."  But  if  one  deliver  goods  to  his  servant  as  his  bailee, 
and  where  the  latter  is  responsible  for  them,  he  may  be  plaintiff 
in  an  action  of  trover."  So  an  officer  who  has  seized  goods  upon 
process  has  sufficient  propei'ty  in  them  to  sustain  the  action  ;  he 
is  responsible  to  the  plaintiff  in  his  process."  Where  a  conunis- 
sion  in  bankruptcy  issues  the  assignee  cannot  sue  an  officer  for 
goods  of  the  bankrupt  seized  before  the  appointment  of  the  as- 
signee, though  the  officer  sells  afterward.*' 

§  645.  Receiptor  of  an  officer.  The  question  as  to  whether 
a  receiptor  to  an  officer  who  has  seized  goods  on  execution  or  at- 
tachment has  such  a  property  as  will  enable  him  to  sustain  re- 
plevin, has  given  i-isc  to  contradictory  decisions.     This  right  has 

*SawtelIe  v.  Rollins,  23  Me.  19G. 

♦"Smith  V.  Williamson,  1  Har.  &  J.  (.Md)  147;  Newman  r.  Bennett. 
23    III.   427. 

"Tifft  t'.  Tlfft,  4   Denio,  11',. 

"School  DIst..  ft«-.,  t'.  Uragdon.  23  N.  H.  507.  cited  a.s  Milton  r.  nrag- 
don.  23  N.  H.  507. 

"Deacon  v.  PowerH.  57  Ind.  4S9;    Newman  v.  Hennelt.  2:{   111.  427. 

"Harris  v.  Smith.  3  S.  &  R.  (Pa.)  23;  IJrownell  v.  Mam  hester.  1 
Pick.  232;  Clark  v.  Skinner.  20  Johns.  4G5;  Ludden  v.  Leavltt.  "J  MasH. 
104. 

"Harris  v.  Smilli.  3  Sctk.  &  R.  23. 

-  Urownell   v.   .MancheHler,   1    Pick.   232. 

*' Smith  I'.  Clark,  -1   Durnf,  &.  K.  470. 


526  THE  LAW  OF  REPLEVIN. 

been  denied  in  many  cases."  In  Miller  v.  Adsit^'X^  Wend.  335, 
after  an  elaborate  discns.'^ion  of  the  question  and  the  authorities 
pro  and  co//.,  the  c-ourt  held  that  a  receiptor,  where  he  was  ac- 
countable to  the  officer,  had  such  possession  as  would  enable  him 
to  sue.  It  is  difficult  to  see  any  good  reason  which  should  deny 
the  right  of  action  to  such  a  person  where  by  the  terms  of  the 
deposit  he  has  the  rightful  possession  of  the  goods,  and  is  respon- 
sible to  the  officer  for  their  safe  return.  His  rapacity  is  rather 
that  of  a  bailee  than  a  servant ;  he  has  an  interest  in  the  })rotec- 
tion  of  the  goods,  and  such  a  right  as  would  justify  him  in  resist- 
ing a  trespass  ;  he  would  be  liable  for  the  value  in  case  he  failed 
to  protect  them. 

§  646.  Attaching  creditor  not  liable  jointly  with  the 
officer.  An  attaching  creditor  is  not  liable  jointly  with  the 
sheriff  who  serves  the  attachment  and  takes  possession  of  the 
property.  The  officer  is  the  proper  defendant.*'  When  the 
attaching  creditor  has  possession  of  the  goods  he  may  be  a  de- 
fendant ;  and  an  attaching  creditor  cannot  be  joined  as  plaintiff 
with  the  officer  for  a  taking  of  goods  from  the  officer's  possession 
unless  he  had  some  possession  at  the  time  of  taking. 

§  647.  Minor  cannot  sue.  A  mmor  caiuiot  sustain  the  ac- 
tion in  his  own  name.  Two  partners  who  were  minors  joined  in 
a  chattel  mortgage ;  one  of  them  became  of  age  and  ratified  the 
mortgage  ;  the  other  could  not  sustain  replevin  after  dissolution 
of  the  firm,  though  he  had  acquired  the  interest  of  the  other  partner. 
A  minor  must  sue  by  his  guardian  or  next  friend.^"  The'  same 
rules  apply  to  one  laboring  under  any  other  legal  disability.  The 
surviving  partner  is  entitled  to  the  possession  of  the  goods  of  the 
firm,  and  may  recover  them  from  one  who  wrongfully  interferes; 
it  is  not  necessary  that  he  declare  as  surviving  partner;  his  right 
to  recover  is  an  individual  right,  and  he  is  not  required  to  state 
the  facts  under  which  he  claims  title.**  In  some  States  local  laws 
vests  the  administrator  with  the  interest  of  the  deceased  partner 

*'Ludden  v.  Leavitt,  9  Mass.  104;  Warren  v.  Leland,  9  Mass.  265; 
Commonwealth  v.  Morse,  14  Mass.  217;  Dillenback  v.  Jerome,  7  Cow. 
294;   Norton  v.  People,  8  Cow.  137. 

*"  Richardson  v.  Reed,  4  Gray,  (Mass.)  443;  Ladd  v.  North,  2  Mass. 
516. 

"•Keegan  v.  Cox,  116  Mass.  290. 

"Smith  V.  Wood,  31  Md.  293. 


PARTIES.  52T 

in  partnership  chattels.     In  such  cases  the  administrator,  and  not 
the  surviving  partner,  may  sue. 

Note  XXIX.  Plaintiffs.  Trustee.  Adyninistrator,  Bailee,  Depositary. — 
One  who  has  the  right  of  possession,  though  in  a  trust  capacitj',  may  re- 
cover goods  which  are  the  subject  of  the  trust.  He  need  not  sue  as 
trustee,  Odd  Fellows  Association  v.  McCallister,  153  Mass.  292,  26  N.  B. 
862;  Hexter  r.  Schneider.  14  Ore.  184,  12  Pac.  668;  Puffer  Sons  Co.  v. 
May,  78  Md.  74.  26  Atl.  1020.  He  has  the  sole  right  of  action,  Upham  v. 
Allen,  73  Mo.  Ap.  224.  And  so,  one  to  whom  the  goods  have  been  conveyed 
as  trustee,  merely  to  enable  him  to  bring  the  action.  Wall  r.  Demitkie- 
wiez,  9  Ap.  D.  C.  109.  The  death  of  the  mortgageor  in  trust  do3s  not 
impair  the  right  of  the  trustee,  Carraway  v.  Wallace,  Miss.  17  So.  930; 
and  an  agent  who  purchased  goods  in  his  own  name  for  the  benefit  of 
the  principal,  though  he  pays  for  them  with  the  moneys  of  the  princi- 
pal, and  throughout  the  transaction  acts  for  the  principal,  can  neverthe- 
less maintain  replevin  for  the  goods.  Church  v.  Foley,  10  S.  D.  75, 
71  N.  W.  759.  A  mere  agent  to  foreclose  a  mortgage,  never  having  had 
possession,  cannot,  Fullerton  v.  Morse,  1C2  Ills.  43,  44  N.  E.  390.  And 
see  Mitchell  v.  Georgia  Co.,  Ill  Ceo.  700,  36  S.  E.  971.  An  unincorpo- 
rated society  may  appoint  a  committee  to  control  their  properties,  and 
one  who  receives  such  properties  from  the  committee,  on  conditions 
afterwards  violated,  is  answerable  to  the  committee  suing  as  trustees 
of  the  association  to  reclaim  the  article,  Bartlett  v.  Goodwin,  71  Me. 
350.  The  trustee  should  sue  for  himself,  and  not  "  for  the  use  of"  the 
beneficiaries;  he  must  be  treated  as  the  real  plaintiff  and  must  show 
title  in  himself,  Meyer  v.  Warner,  64  Miss.  610,  1  So.  837;  Roof  v. 
Chattanooga  Co.,  36  Fla.  284,  18  So.  597.  An  administrator  may  sue  for 
the  value  of  corporate  stock  issued  to  a  decedent  in  his  lifetime,  Mor- 
ton V.  Preston,  18  Mich.  00;  may  maintain  replevin  for  any  of  the 
chattels  pertaining  to  the  estate  of  the  decedent,  The  State  v.  Farrar, 
77  Mo.  175;  even  against  the  specific  legatee,  Highnote  v.  White.  67 
Ind.  596;  or  the  sole  distributee,  and  though  deceased  left  no  debts, 
Prltchard  v.  Norwood,  155  Mass.  539,  30  N.  E.  80.  An  intestate's  per- 
sonalty is  at  once  cast  upon  his  personal  representative;  the  sole 
distributee  can  maintain  no  action,  Reese  v.  Harris,  27  Ala.  301. 

It  seems  that  where  the  estate  of  a  decedent  is  finally  settled  and  It 
is  ascertained  that  a  specific  legacy  will  not  be  no«'ded  for  the  payment 
of  debts,  the  legatee  may  maintain  replevin  against  the  personal 
representative,  Highnote  v.  White,  07  Ind.  590.  Where,  by  the  terniH 
of  a  decedent's  will,  a  trustee  Is  appointed  to  have  possession  and  con- 
trol of  a  child's  share,  the  beneficiary  cannot  recover  the  property  from 
Hurh  trustee,  Thieme  v.  Zumpe,  152  Ind.  359,  52  N.  E.  449.  A  life  In- 
surance policy,  payablf  to  the  Insured,  "  his  executors.  a.lmlnlstratorK 
or  aHHlgns."  for  the  Ix-riffil  of  Infants,  was  upon  his  death  delivered 
to  the  guardian  of  IIm-  ItifaiilH,  and  by  hini  Hurri'ndiTiMJ  to  the  luKunT; 
the  admlnlHtrator  of  the  Insured  aflr-r  this  Ki-tllrniinl  brought  trover 
for  the  policy  agalust  the  company,  alleging  that  the  btltlcuieul  wa» 


528  THE  LAW  O:-'  REPLEVIN. 

procured  by  the  fraud  and  misrepresentation  of  the  insurer.  Held, 
that  the  guardian's  possession  of  the  policy  was  rightful,  that  the  ad- 
ministrator could  not  maintain  trover  against  him,  that  the  guardian 
alone  was  responsible  for  the  safe  keeping  of  the  policy,  that  the  law 
affords  him  a  remedy  if  it  was  wrongfully  taken  from  him,  and  that 
the  plaintiff  had  no  right  of  action.  Massachusetts  Co.  v.  Hayes,  16 
Ills.  Ap.  233.  The  receiptor  or  bailee  who  has  possession  and  whose 
possession  is  interfered  with,  may  maintain  replevin,  Robinson  v. 
Beserick,  156  Mass.  141,  30  N.  E.  5.53.  And  a  mere  depositary  having 
possession,  Kellogg  v.  Adams,  51  Wis.  138,  8  N.  W.  115;  or  one  en- 
titled to  use  the  goods,  at  his  pleasure,  Tandler  v.  Saunders,  56  Mich. 
142,  22  N.  W.  271. 

Plaintiff's  horses  seized  by  the  defendant  as  sheriff  were  sold  on 
execution  against  a  third  person,  and  purchased  by  a  stranger,  who 
delivered  them  to  the  plaintiff  to  pasture.  It  was  held  that,  notwith- 
standing this  actual  possession,  the  plaintiff  was  entitled  to  judg- 
ment for  possession.  Plaintiff's  possession  in  such  case  was  declared 
to  be  not  absolute,  but  in  the  nature  of  a  bailment,  terminable  at 
the  pleasure  of  the  bailee.  Benjamin  v.  Huston,  16  So.  Dak.  569,  94 
N.  W.  584. 

Receivers. — A  receiver  appointed  in  one  state  of  chattels  there,  the 
court  having  jurisdiction,  was  ordered  to  convey  them  to  market  in 
another  state  and  dispose  of  them.  It  was  held  that  in  the  latter  state 
the  receiver  might  maintain  replevin  against  an  officer  interfering 
with  his  possession,  Cagill  v.  Woolridge,  8  Baxt.  580.  The  denial  of 
a  motion  to  remove  a  receiver  has  the  effect  of  an  appointment,  and 
qualifies  him  to  proceed  with  an  action  of  replevin  which,  under  color 
of  a  previous  void  appointment,  he  has  instituted,  Guy  v.  Doak,  47 
Kans.  366,  27  Pac.  968. 

Mortgagee. — Mortgagee,  who,  before  any  levy  has  assumed  possession 
of  the  goods,  may  replevy  them  from  the  officer  who  levies  under  an 
execution  against  the  mortgageor,  although  the  mortgage  is,  but  for 
such  assumption  of  possession,  fraudulent,  for  permitting  the  mortgagor 
to  continue  in  possession  with  power  to  sell,  Williams  v.  Miller,  6 
Kans.  Ap.  626,  49  Pac.  703.  Contra.  Wilson  v.  Voigt,  9  Colo.  614,  13 
Pac.  726.  The  Baldwin  Company  executed  a  bill  of  sale  of  certain 
carriages  to  McEwen,  and  McEwen  assigned  it  to  the  plaintiffs  who 
had  advanced  money  for  the  construction  of  the  carriages;  later  Mc- 
Ewen by  an  attachment  against  the  Baldwin  Company  got  possession 
and  delivered  the  goods  to  the  plaintiff;  the  Baldwin  Company  after- 
wards attached  the  property  as  McEwen's.  Held  plaintiffs  were  at  the 
least  the  equitable  owners  and  entitled  to  possession,  even  though  the 
bill  of  sale  was  intended  as  security,  and  they  might  maintain  replevin, 
Thompson  v.  Dyer,  25  R.   I.  321,  55  Atl.  824. 

Mortgagor. — The  right  of  action  by  one  otherwise  entitled  is  not 
impaired  by  the  fact  that  he  has  executed  a  deed  of  trust  of  the 
<;hattels,  as  security,  binding  himself  to  deliver  them,  Haines  v.  Coch- 
ran, 26  W.  Va.  719. 

Pledgee. — The  pledgee  of  a  promissory  note  or  check  may  maintala 


PARTIES.  529 

replevin  against  an  officer  who  levies  upon  it  under  an  execution  against 
the  pledgor.  Moorman  v.  Quick.  20  Ind.  67. 

Bare  Possession. — One  in  peaceable  possession  as  owner  may  main- 
tain replevin  against  one  who  without  right  disturbs  his  possession, 
Van  Baalen  r.  Dean,  27  Mich.  104;  St.  Paul  Co.  v.  Kemp.  Wis.  103  N. 
W.  259.  The  widow  in  possession  of  personal  property  formerly  be- 
longing to  her  husband,  may  maintain  trover  as  against  any  one  but 
the  administrator,  Brown  v.  Season,  24  Ala.  436.  A  bailiff  deputed 
to  foreclose  a  mortgage  and  who  assumes  possession  of  the  mortgaged 
goods  for  the  mortgagee,  his  employment  being  terminable  at  the 
mortgagee's  pleasure,  is  a  mere  servant  and  his  possession  does  not 
entitle  him  to  maintain  replevin,  even  as  against  a  wrong-doer,  Pease 
V.  Ditto,  189  Ills.  456.  59  N.  E.  983. 

Partners  and  Tenants  in  Common. — The  members  of  a  voluntary 
association  for  benevolent  purposes,  have  no  several  proprietary 
interests  in  the  property  of  the  society,  nor  any  right  to  any  propor- 
tional part  thereof;  either  during  the  continuance  of  their  member- 
ship or  upon  their  withdrawal.  Ahlendorf  r.  Barkhous,  20  Ind.  Ap. 
656,  50  N.  E.  887.  And  if  a  member  of  such  association  secedes  there- 
from, the  remaining  members  may  maintain  replevin  for  the  regalia 
and  other  properties  of  the  society  in  his  possession.  Id.  Replevin 
for  partnership  goods  must  be  brought  by  the  co-partners  and  not  by 
the  partnership.  Stever  t'.  Brown,  119  Mich.  196,  77  N.  W.  704;  Heath 
r.  Morgan,  117  N.  C.  504,  23  S.  E.  489.  If  one  partner  mortgage  the 
firm  property  to  secure  his  individual  debt  the  other  partner  may  main- 
tain replevin,  Deeter  v.  Sellers,  102  Ind.  458,  1  N.  E.  854.  In  Fergu- 
son V.  Day,  6  Ind.  Ap.  138,  33  N.  E.  213,  it  was  held  that  where  partner- 
ship goods  are  seized  for  the  individual  debt  of  one  of  the  firm,  and 
the  officer  proceeds  irregularly,  all  the  partners,  including  the  indi- 
vidual debtor,  must  unite  in  replevying  the  goods.  Where  one  partner 
sells  his  interest  to  the  other  the  latter  may  have  replevin,  though  the 
partnership  accounts  are  unsettled,  Newberry  v.  Gibson,  Iowa,  101 
N.  W.  428.  A  tenant  in  common  cannot  maintain  rei)levin  against 
his  co-tenant.  Hudson  r.  Swan,  S3  X.  Y.  552;  Fell  v.  Taylor,  2  Pen. 
Del.  372,  45  Atl.  716.  And  all  tenants  in  common  must  unite  even  In 
an  action  against  a  stranger,  George  v.  McGovern,  83  Wis.  555,  53  N.  W. 
899;  Fay  r.  Duggan.  135  Mass.  242;  Corcoran  v.  White,  146  Ma.ss.  329, 
15  N.  E.  636;  Hoeffer  r.  Agee,  9  Colo.  Ap.  189.  47  Pac.  973.  And  so  where 
one  is  in  possession  as  the  trustee  of  several,  all  those  must  unite 
to  recover  the  goods  from  such  trustee,  SmithMiCord  Co.  r.  Burke, 
63  Kans.  740,  66  Pac.  1036.  And  part  owner  cannot  replevy  the  goods 
from  an  officer  who  has  levied  upon  them  under  an  ntUichment  against 
the  other  owner,  Bray  v.  Raymond.  166  Mass.  146.  44  N.  E.  131.  But 
It  seemH  that  one  tenant  in  comnion  may  as  against  ;i  mere  wrongdoer, 
recover  the  whole  (ommon  property,  Bryant  t'.  Ware.  30  .Mi-.  2!t5. 

("oHHignor   and    Consignrr. — The   conKlgnor    has    IIk-   entire    property 

and    may   sue   for   ItH   non-dellvory;    ho   the  conHlgiiee   if   the   property 

i8   In   him.      If  one   haH   the  general   and   the  other  a  Hperlal    property 

the  two  may  unite.  Denver  Co.  r.  Frame,  6  Colo.  382.     A  bill  of  ladinR 

34 


CSO  THE  LAW  OF  REPLEVIN. 

entitles  the  consignee  named  therein  to  maintain  replevin,  Powell  v. 
Bradlee.  9  G.  &  J.  220;  though  consigned  to  him  merely  for  sale,  Stephens 
V.  Head.  138  Ala.  455,  35  So.  565.  In  a  similar  case  it  was  held  that  the 
consignor  m'ght  replevy  from  an  officer  who  attached  them  as  the 
property  of  the  consignee,  Fleet  r.  Hertz,  201   Ills.  594.  G6  N.  E.  858. 

Husband  and  Wife. — The  husband  cannot  maintain  replevin  against 
the  wife  where  the  common  law  prevails,  Walko  v.  Walko.  04  Conn. 
74,  29  Atl.  243;  Sherron  v.  Hall,  4  Lea.  499.  A  statute  providing  that 
actions  relating  to  the  separate  property  of  a  married  woman  must 
be  in  the  name  of  husband  and  wife,  controls,  where  replevin  is  in- 
stituted to  recover  wood  cut  £rora  lands  mortgaged  to  the  wife,  Water- 
man i\  Matteson,  4  R.  I.  539.  In  Maryland,  husband  and  wife  may 
join  in  an  action  to  recover  the  wife's  separate  property,  Herzberg  v. 
Sachse,  60  Md.  426;  or  the  wife  may  join  with  her,  her  next  friend, 
Sherron  r.  Hall,  sup7-a.  But  a  married  woman,  living  apart  from  her 
husband,  may  maintain  replevin  against  him,  White  v.  White,  58 
Mich.  546,  25  N.  W.  490.  And  the  wife,  who  is  a  sole  trader,  may  re- 
cover her  goods  from  an  officer  who  seizes  them  on  execution  against 
the  husband,  Gavigan  v.  Scott,  51  Mich.  373,  16  N.  W.  769. 

Corporations. — In  an  action  by  "  Hussey,  President "  of  a  certain 
incorporated  society  named,  the  corporation  is  not  a  party,  McEvoy  i?. 
Hussey,  64  Ga.  315.  The  president  of  an  incorporated  benevolent 
society  cannot  maintain  replevin  for  the  books  and  papers  of  the  corpo- 
ration pertaining  to  the  office  of  the  secretary  thereof,  merely  by  virtue 
of  his  office  as  president;  he  must  show  some  right  to  the  possession, 
other  than  his  official  capacity.  Id. 

Ouardian,  Infant. — The  guardian  of  an  infant  may  in  his  own  name 
maintain  replevin  for  the  chattels  of  his  ward.  Smith  v.  Williamson, 
1  H.  &  J.  147;  for  the  product  of  the  ward's  lands,  Rose  v.  Eaton,  It 
Mich.  247,  43  N.  W.  972.  The  infant  may  either  in  his  own  name  or 
by  his  guardian  replevin  goods  of  which  he  was  in  possession  at  the 
date  of  the  unlawful  seizure,  though  they  were  then  in  his  father's 
house,  with  whom  he  was  residing,  Wambold  v.  Vick,  50  Wis.  456,  7 
N.  W.  438.  A  minor  whose  guardian  has  been  discharged,  may  sue 
by  his  next  friend.  Bush  r.  Groomes,  125  Ind.  14,  24  N.  E.  81. 

Assignee. — The  owner  of  goods  unlawfully  detained  may  assign 
his  title  and  the  assignee  may  maintain  replevin,  Lazard  v.  Wheeler, 
22  Calif.  139;  Cass  v.  New  York  Co.,  1  E.  D.  Sm.  522;  Wall  v.  DeMitkie- 
wicz,  9"  Ap.  D.  C.  109;  Tome  v.  Dubois,  6  Wall.  548,  18  L.  Ed.  943. 
This  although  the  true  owner  never  had  possession  of  the  goods,  Lazard 
V.  Wheeler,  supra.  The  action  may  be  maintained  even  though  the 
assignment  is  made  without  consideration,  and  expressly  to  enable  the 
assignee  to  sue  and  the  assignor  expects  to  receive  compensation 
from  the  proceeds  of  the  litigation.  Wall  v.  De  Mitkiewicz,  supra; 
Coghill  V.  Boring,  15  Calif.  213.  Many  other  cases  support  this  false 
doctrine;  they  are  all  unsound  in  principle.  The  provision  of  the  code 
that  "  every  action  shall  be  prosecuted  in  the  name  of  the  real  party 
in  interest "   was   never   intended   to   countenance  colorable   transfers 


PARTIES.  531 

and  permit  an  action  by  one  who  has  in  truth  nothing  but  the  ap- 
pearance of  an  interest. 

One  who  sells  goods  which  are  in  adverse  possession,  but  with  the 
condition  that  he  shall  recover  them,  may  maintain  replevin  therefor, 
Bemis  v.  De  Land,  177  Mass.  182.  58  N.  E.  684.  The  endorsement  of 
a  note  which  is  secured  by  mortgage  entitles  endorsee  to  maintain 
replevin  as  soon  as  the  mortgage  is  forfeited,  Crocker  v.  Burns,  13 
Colo.  Ap.  54,  56  Pac.  199;  though  the  mortgage  is  not  assigned.  First 
National  Bank  v.  Ragsdale.  158  Mo.  668.  59  S.  W.  987.  But  the  mere 
endorsement  of  a  promissory  note  executed  for  the  price  of  goods 
purchased  upon  credit  and  which  declares  that  the  title  to  the  goods 
remains  in  the  vendor,  does  not  authorize  the  endorsee  to  replevy  the 
goods.  Roof  V.  Chattanooga  Co..  36  Fla.  284,  18  So.  597.  An  assignment 
of  a  "  certain  claim  "  against  the  defendants  "  amounting  to  the  sum 
of  $144,"  does  not  pass  title  to  the  chattels,  for  the  conversion  of  which 
the  claim  was  asserted.  Shapiro  v.  Lankay,  70  N.  Y.  Sup.  218.  The 
plaintiff,  who  was  in  New  York,  was  requested  by  Llata  to  purchase 
certain  goods,  and  send  them  by  Repko  to  Llata.  in  Cuba;  he  purchased 
and  delivered  the  goods  to  Repko.  who  packed  them  in  his  trunk  and 
delivered  that  to  defendants,  the  agents  of  a  steamship  line.  Repko 
concluded  not  to  sail  as  he  had  intended,  and  demanded  his  trunk  of 
the  defendants;  defendants  refusing.  Repko  for  the  purpose  of  enabling 
plaintiff  to  recover  his  goods,  delivered  the  key  of  the  trunk  to  the 
plaintiff  and  authorized  him  to  demand  the  trunk;  it  was  held  that 
this  terminated  all  right  which  Repko  had  in  the  property  and  entitled 
plaintiff  to  maintain  replevin  upon  defendant's  refusal  to  surrender, 
Tanco  v.  Booth.  39  N.  Y.  St.  82,  15  N.  Y.  Sup.  110. 

Joinder  of  Plaintiffs.— rWhere  one  mortgage  secures  two  promissory 
notes  to  different  payees,  the  two  may  upon  forfeiture  of  the  mortgage 
join  in  replevin  for  the  goods,  Durfee  i\  Grinnell,  69  Ills.  371.  And 
so  where  the  statute  provides  that  "all  persons  having  any  interest 
in  the  subject  matter  of  the  action  and  in  obtaining  the  relief  de- 
manded may  join  as  jjlaintiffs."  several  mortgagees  of  the  same  chattels 
from  the  same  mortgagcor  to  secure  separate  debts  may  unite  in  re- 
plevying the  goods.  Earle  v.  Burch.  21  Neb.  702.  33  N.  W.  255.  The 
principal  in  a  promissory  note  which  has  been  paid,  may  sue  for  It, 
without  joining  the  surety.  Anonymous,  1  Ch.  501.  cited  Stone  v.  Clough. 
41  N.  H.  290;  and  the  principal  and  surety  may  unite.  Spencer  r.  Dearth, 
43  Vt.  98.  Promissory  notes  are  the  property  of  two  minors  having 
separate  curators;  the  curators  proi)crly  join  to  recover  i)OHKCHHion  of  the 
notes.  Mayer  v.  Columbia  Bank,  SC  Mo.  Ap.  lOS.  Defendant  cannot  ob- 
ject that  of  tho  four  plalntlffK  all  have  the  legal  title  and  three  have  tho 
equity  to  redeem  from  a  mortgage.  Hunt  v.  Ilolton,  13  Pick.  216.  Mort- 
gageor  and  mortgagee  of  chattelH  may  unite  in  replevin  although  the 
right  of  poHseHBlon  Is  excluBlvoly  In  the  mortgageor.  Longerl)eam  i». 
HuHton.  8.   D.  105  N.  W.  743. 

Equilahlr  Title. — A  mere  e(|ulty  doen  not  authorize  replevin.  Rlre  v. 
Crow,  6  IlelHk.  28.  Replevin  rannol  be  brought  In  the  name  of  one  for 
the  UHe  of  another;   If  equllleH  are  to  be  aM8crto<l  a  different  proceduro 


532  THE  LAW  OF  REPLEVIN. 

must  be  adopted.  Moore  v.  Watson,  20  R.  I.  495,  40  Atl.  345;  but  it 
seems  that  in  an  action  by  a  trustee,  having  the  legal  title  the  qualify- 
ing phrase  "  for  the  use  of,"  should  be  rejected  and  the  action  proceed, 
Meyer  v.  Warner,  64  Miss.  filO,  1  So.  837;  Roof  v.  Chattanooga  Co.,  36 
Fla.  284.  l8  So.  597.  A  promissory  note  was  executed  by  A,  and  B  as  A's 
surety,  and  made  payable  to  C;  A  gave  a  chattel  mortgage  to  B  to 
indemnify  him.  Held,  that  C  was  not  entitled  to  demand  or  replevy 
the  mortgaged  chattels  until  he  had,  by  equitable  suit  against  all  the 
parties,  foreclosed  the  mortgage  and  established  his  claim.  Though 
it  seems  that  by  B's  assignment  of  the  chattel  mortgage  he  might  have 
reached  the  same  position.  Pierce  v.  Batten,  3  Kans.  Ap.  396,  42  Pac. 
924.  The  unsuccessful  candidate  in  a  voting  contest  will  not  be  per- 
mitted to  sustain  replevin  for  the  prize,  upon  allegation  that  the  result 
was  erroneously  declared,  Fisher  r.  Alsten,  186  Mass.  549,  72  N.  E.  78; 
Penton  r.  Hansen,  13  Okla.  450,  73  Pac.  843. 

Defendants.  One  in  Actual  Possession. — Replevin  lies  against  one 
who  has  possession  of  the  goods.  Griffin  v.  Lancaster,  59  Miss.  340; 
Glass  V.  Basin  &  Bay  Co.,  Mont.,  77  Pac.  302;  Christy  v.  Ashlock,  93  Ills. 
Ap.  651;  Read  v.  Brayton,  143  N.  Y.  342,  38  N.  E.  261.  The  one  in  pos- 
session is  the  only  proper  defendant,  Jenkins  v.  City  of  Ontario,  44 
Ore.  72,  74  Pa^.  467;  Moore  v.  Brady,  125  N.  C.  35,  34  S.  E.  72;  Heidiman 
Co.  V.  Schott,  59  Neb.  20,  80  N.  W.  47;  Scott  v.  McGraw,  3  Wash.  675, 
29  Pac.  260;  Gilbert  v.  The  Bulfalo  Bill  Co.,  70  Ills.  Ap.  326;  Van- 
Gorder  r.  Smith,  99  Ind.  404. 

Even  though  he  be  a  mere  servant  he  may  be  made  defendant,  De- 
bord  V.  Johnson,  11  Colo.  Ap.  402,  53  Pac.  255;  or  a  receiptor,  to  an 
officer.  Robinson  v.  Besarick,  15 ^  Mass.  141,  30  N.  E.  553;  Irey  v.  Gor- 
man, 118  Wis.  8.  94  N.  W.  658;  Douglas  v.  Gardner,  63  Me.  462;  Estey  v. 
Love,  32  Vt.  744;  McMillan  v.  Larned,  41  Mich.  521;  2  N.  W.  662;  or 
a  mere  bailee.  Colby  v.  Portman.  115  Mich.  95,  72  N.  W.  1098;  or 
an  auctioneer  to  whom  goods  have  been  committed  merely  for  sale, 
Grossman  v.  Walters.  58  Hun,  603,  11  N.  Y.  Sup.  471.  Third  persons 
claiming  an  interest  but  having  no  possession  cannot  be  joined  merely 
to  settle  their  rights.  Van  Gorder  t\  Smith,  supra.  Where  two  claim 
title,  only  the  one  in  possession  need  be  made  defendant,  Seattle  Bank 
V.  Meerwaldt.  8  Wash.  630,  36  Pac.  763;  Scott  v.  McGraw,  supra.  The 
officer  who  makes  an  unlawful  levy,  and  not  the  execution  plaintiff,  is 
responsible  to  the  owner  of  the  goods.  The  city  cannot  be  joined  with 
the  marshal  in  replevin  for  an  animal  taken  up  by  him  for  the  violation 
of  an  ordinance,  Jenkins  v.  The  City  of  Ontario,  supra.  One  who  has 
no  control  of  goods  or  authority  to  deliver  them  cannot  be  made  de- 
fendant and  charged  with  costs,  even  although  for  a  special  purpose 
he  has  the  keys  of  the  place  where  the  goods  are.  Barnes  v.  Gardner, 
60  Mich.  133,  26  N.  W.  858.  Replevin  will  not  lie  against  ohe  who  has 
never  had  possession  of  the  goods.  Stahl  v.  Chicago  Go.,  94  Wis.  315,  68 
N.  W.  954;  Lothrop  v.  Locke,  59  N.  H.  532.  An  officer  who  has  seized 
goods  under  a  writ  of  replevin  and  delivered  them  to  the  plaintiff 
in  that  writ,  is  not  liable  therefor  to  a  stranger,  Boyden  v.  Frank,  20 
Ills.  Ap.  169.    One  who  upon  demand  made  for  goods  which  are  in  his 


PARTIES.  533 

possession,  asserts  title  and  refuses  the  demand,  cannot  say  after- 
wards that  he  held  as  a  mere  servant  and  is  not  answerable  in  his  own 
person,  Alexander  v.  Boyle,  68  Ills.  Ap.  139.  The  defendants  are  in 
possession  of  sheep  under  a  mortgage  from  Day:  plaintiff  claims  the 
sheep  as  lessor  of  Day:  the  administrator  of  Day  is  not  a  necessary 
party,  Cunningham  r.  Stoner.  Idaho,  79  Pac.  228. 

Plaintiff,  a  steamship  company,  appointed  defendant  its  agent  for  the 
sale  of  passage  tickets.  It  was  the  understanding  that  defendant 
should  appoint  special  agents  at  the  various  cities  throughout  the 
republic.  Plaintiff  delivered  to  defendant,  from  time  to  time,  tickets 
for  sale  at  an  agreed  commission.  Defendant  transmitted  many  of 
these  to  his  special  agents.  Plaintiff  having  discontinued  the  agency 
sued  in  replevin  for  tickets  delivered  to  defendant  and  not  sold  or  re- 
turned. Held,  that  defendant's  possession  in  the  beginning  was  lawful; 
that  his  disposition  of  them  was  lawful,  and  therefore  he  was  not,  in 
contemplation  of  law,  in  possession  of  the  tickets  which  he  had  de- 
livered to  his  special  agents,  or  responsible  for  them.  National  Co.  v. 
Sheahan,  122  N.  Y.  461,  25  X.  E.  85S,  10  L.  R.  A.  782. 

Constructive  Possession. — A  client  is  liable  in  replevin  for  a  writing 
which  at  the  time  of  demand  made  upon  him,  is  in  possession  of  his 
attorney,  Mitchell  v.  Eure,  126  N.  C.  77,  35  S.  E.  190.  And  so  one  who 
is  in  possession  by  his  bailiff  or  agent,  Richey  v.  Ford,  84  Ills.  Ap. 
121.  Defendant  was  asserting  title  to  a  particular  chain  which  was 
in  plaintiff's  possession;  to  obtain  it  he  sued  out  an  attachment  against 
plaintiff,  went  with  the  officer  to  the  premises  of  plaintiff,  pointed  the 
chain  out,  directed  the  officer  to  attach  it,  and  assisted  in  the  levy. 
When  the  plaintiff's  writ  was  served  the  chain  was  in  the  sole  posses- 
sion of  the  plaintiff,  or  in  possession  of  his  attorney  and  in  his  pres- 
ence. It  was  held  that  defendant  was  properly  sued,  without  joining 
the  officer,  and  would  not  be  permitted  to  defeat  the  action  by  suggest- 
ing the  non-joinder,  Tripp  v.  Leland,  42  Vt.  487,  citing  Allen  v.  Crary. 
10  Wend.  349;  Skilton  v.  Wir.slow,  4  Gray,  441. 

Executors. — Replevin  will  not  lie  against  an  executor  for  trust 
funds  converted  by  the  testator,  unless  the  money  or  specific  property 
into  which  it  can  be  traced,  is  shown  to  have  come  to  the  executor's 
possession,  Rowlantl  v.  Madden,  72  Calif.  17,  12  Pac.  226. 

In  Elmore  v.  Elmore,  ns  S.  C.  289,  36  S.  E.  656.  It  was  held  by  a 
divided  court  that  the  action  of  claim  and  delivery  could  not  be  main- 
tained against  an  execufor  in  his  representative  capacity  to  recover 
posspRslon  of  personal  property  wrongfully  withheld  l)y  him.  Two 
judges  denied  the  right  of  action  on  the  ground  that  an  executor 
has  no  right  or  power  to  InipoHe  upon  the  estate  any  liability  by 
contract  either  expresHed  or  implied,  although  the  contract  be  entered 
Into  for  the  benefit  of  the  ohtate,  that  by  greater  reaHon  he  hai<  no 
power  to  <harge  It  by  any  tort  which  he  may  commit.  The  other 
JudgeH  were  of  the  opinion  that  when  goodH  are  wrongfully  taken  by 
the  deceaKed,  and  remain  in  Hjjecle  In  the  handn  of  the  executor,  the 
lawful  owner  may  maintain  a  claim  for  them  the  8amc  us  if  he  waM 
the  original  tort  feasor. 


534  THE  LAW  OF  REPLEVIN. 

Attorney. — An  attorney  who  is  known  to  be  such,  and  acting  In 
good  faith  for  a  client,  and  who  causes  goods  to  be  taken  under  a 
chattel  mortgage,  is  not  liable  in  replevin  to  a  stranger  to  the  mort- 
gage, who  lays  claim  to  them,  Myers  v.  Lingenfelter,  81  Mo.  Ap.  251. 

Assignee  for  Creditor's. — The  assignee  is  the  general  owner;  the 
insolvent  cannot  in  an  action  of  replevin  inquire  into  his  conduct  nor 
maintain  his  action  by  evidence  of  negligence  on  the  part  of  the  as- 
signee, Rodman  v.  Nathan,  45  Mich.  607,  8  N.  W.  562. 

Assignee  for  creditors  takes  the  property  subject  to  all  liens,  bar- 
gains and  sales  to  which  it  was  subject  while  in  the  hands  of  the 
assignor,  whether  valid  as  against  creditors  or  not,  Riebling  v.  Tracy, 
17  Ills.  Ap.  158;  and  his  title  may  be  assailed  upon  the  same  grounds 
as  the  title  of  one  holding  no  official  position  or  relation,  Boyden  v. 
Frank,  20  Ills.  Ap.  109.  An  attaching  creditor  assailing  a  transfer 
by  his  debtor,  cannot  assert  that  it  is  a  mere  assignment  for  the  bene- 
fit of  creditors;  his  position  as  seeking  to  secure  his  individual  claim 
upon  the  goods  is  at  war  with  this  position,  Avary  v.  Perry  Co.,  96 
Ala.  406,  11  So.  417. 

Husband  and  Wife. — Where  husband  and  wife  are  jointly  in 
possession,  replevin  will  lie  against  the  husband  upon  his  refusal  to 
surrender  the  goods.  McGregor  'v.  Cole,  100  Mich.  262,  58  N.  W.  1008. 
If  the  wife  wrongfully  detain  the  goods  of  a  third  person  upon  the  hus- 
band's premises,  he  may  be  made  defendant  in  an  action  of  replevin, 
though  his  conduct  is  merely  passive,  Choen  v.  Porter,  66  Tnd.  194. 
The  husband  may  be  liable,  though  the  wife  has  the  sole  custody  and 
caYe  of  the  thing,  ]\Ianning  v.  Mitcherson,  69  Ga.  447.  Replevin  lies 
against  a  fefnme  covert  in  possession  whose  husband  has  fled  the  state. 
Heath  v.  Morgan,  117  N.  C.  504,  23  S.  E.  489.  A  married  woman  who 
has  made  a  conditional  purchase  of  a  piano  upon  her  own  account  must 
be  made  defendant,  if  the  vendor  would  recover  it.  Her  possession  of 
her  separate  property  cannot  be  the  possession  of  her  husband.  Gentry 
V.  Templeton,  47  Mo.  Ap.  55. 

Officer  and  Deputy. — An  officer  holding  the  goods  under  writ  of  re- 
plevin cannot  be  made  defendant  in  a  second  replevin,  even  at  the  suit 
of  a  stranger,  Weiner  v.  Van  Renssalaer,  43  N.  J.  L.  547.  A  deputy 
sheriff  seizing  goods  under  a  chattel  mortgage  acts  not  for  the  sheriff 
but  as  agent  of  the  mortgagee;  the  sheriff  is  not  liable  for  his  acts, 
Depriest  v.  McKinstry,  38  Neb.  195,  56  N.  W.  806. 

Infants. — Replevin  is  founded  on  tort  and  lies  against  an  infant, 
Wheeler  Co.  v.  Jacobs,  50  N.  Y.  St.  767,  21  N.  Y.  Sup.  1006. 

Wrongful  Transfer  to  defeat  the  Writ. — One  who  has  sold  and  trans- 
ferred the  goods  to  another  in  order  to  evade  the  writ,  is  liable,  Hel- 
man  v.  Withers,  3  Ind.  Ap.  532,  30  N.  E.  5.  One  wrongfully  obtain- 
ing the  goods  of  another  and  refusing  on  demand  to  surrender  them, 
is  liable  in  replevin,  though  he  no  longer  has  them  in  his  possession 
at  the  time  of  the  institution  of  the  suit,  Eddings  v.  Boner,  1  Ind.  T. 
173,  38  S.  W.  1110.  Replevin  lies  against  the  sheriff,  who  before  the 
institution  of  the  action  has  sold  the  property,  after  having  received 


PARTIES.  535 

notice  of  the  plaintiff's  title  while  the  goods  are  yet  in  his  possession 
as  sheriff.     Mitchell   v.  McCleod.   la.,  104  N.  W.  349. 

Sheriff  out  of  Office. — A  sheriff  from  whom  goods  taken  in  execution 
have  been  replevied,  is  entitled  to  defend  the  action  though  he  has  re- 
turned his  writ  and  gone  out  of  office,  Bowersock  v.  Adams,  59  Kans. 
779,  54  Pac.  1064. 

Joinder  of  Defendants. — Plaintiffs  in  execution  upon  which  goods  are 
levied,  are  not  proper  parties  to  a  suit  to  replevy  them.  Blatchford  f>. 
Boyden,  122  Ills.  657.  13  X.  E.  801;  Ide  v.  Gilbert.  62  Ills.  Ap.  524; 
McLachlan  r.  Pease.  66  Ills.  Ap.  634.  The  plaintiff  in  execution  cannot 
be  joined  with  the  officer,  even  though  he  direct  the  levy.  House  v. 
Turner,  lOG  Mich.  240,  64  X.  W.  20.  A  person  residing  with  the  land- 
owner impounded  cattle  unlawfully;  the  landowner  refused  to  deliver 
them  on  demand:  both  parties  are  liable  in  replevin,  Rowe  v.  Hicks, 
58  Vt.  18.  4  Atl.  563.  Where  buyer  obtains  goods  by  fraud  and  while 
they  are  still  in  his  possession  makes  an  assignment  for  the  benefit  of 
creditors,  both  the  assignor  and  assignee  may  be  joined  in  replevin  by 
the  seller.  Nichols  v.  Michael,  23  N.  Y.  264.  In  Norris  v.  Clinkscales, 
47  S.  C.  488.  25  S.  E.  797,  it  was  said  that  if  part  of  the  goods  claimed 
are  shown  to  have  been  detained  by  one  defendant,  and  the  residue 
by  the  other  defendant,  a  two-fold  verdict  may  be  given. 

But  it  seems  this  was  a  clear  case  of  mis-joinder,  that  the  verdict 
should  have  been  not  guilty,  and  the  judgment  that  each  defendant 
should  go  without  day. 

Misjoinder. — Misjoinder  of  defendants  does  not  defeat  the  action; 
one  defendant  may  be  found  guilty  and  the  other  acquitted.  Wall  r. 
Demitkiewicz,  9  Ap.  D.  C.  109.  Mis-joinder  of  defendants  may  be  cured 
by  putting  the  plaintiff  to  his  election.  Powell  v.  Bradlee.  9  G.  &  .1.  220. 
But  where  two  are  sued  as  partners  and  it  is  shown  Kiat  the  whole  title 
and  right  of  possession  is  in  one  of  them,  the  action  fails.  Deyerle  r. 
Hunt,  50  Mo.  Ap.  541.  The  defendant  has  no  advantage,  in  the  fact  that 
one  of  several  is  joined  as  plaintiff  without  his  consent,  the  one  so 
united  making  no  objection.  Cinfel  r.  Malena.  67  Neb.  95.  93  N.  W.  165. 
Where  judgment  was  given  in  favor  of  two  plaintiffs,  one  of  whom  had 
no  right,  the  judgment  in  favor  of  the  latter  was  reversed  and  that  in 
favor  of  the  other  affirmed,  Houck  v.  Linn,  48  Neb.  228.  66  N.  W.   1103. 

Amendments  as  to  Parties. — If  a  married  woman  sue,  the  writ  may  be 
amended  l)y  uniting  with  her  her  liusband  as  co-plaintiff,  or  her  next 
frif-nd,  Sherron  v.  Hall.  4  Lea.  498.  Defendants  may  be  added,  Mc- 
Carthy V.  Hetzner.  70  Ills.  Ap.  480;  Thorn  v.  Lazarus,  39  Ap.  1)1  v.  508, 
57  N.  Y.  Sup.  279;  even  after  the  writ  1h  abated.  Hilton  i'.  Osgood.  49 
Conn.  110.  Where  the  statute  gives  the  wife  all  the  remedies  of  an 
unmarried  woman  In  regard  to  her  separate  estate,  she  is  entitled  to  be 
matle  party  to  a  suit  In  which  her  husband  Is  Hceklng  to  recover  gonds 
belonging  to  her.  Carney  v.  (JlelKKner.  62  WIh.  493,  22  N.  W.  735.  And 
gee  I^wall  v.  Lawall,  150  Pa.  St.  626.  24  Atl.  289.  Where  gnodH  are 
replevied  by  a  Htranger  to  a  suit  In  which  the  Hamc  gooilH  luive  alrcjuly 
been  replevied,  the  defendant  In  such  Hctond  Bult  may  plea<l  the  proi  cbk 


536  THE  LAW  OF  REPLEVIN. 

in  the  former,  action,  under  which  he  hohls  the  goods,  and  malte  the 
other  party  to  the  original  replevy  i)arty  in  the  new  suit,  and  so  adjust 
all  rights  upon  one  record.  Mohi  v.  Langan,  162  Mo.  474,  63  S.  W.  409. 
And  where  the  defendant  pleads  title  in  an  assignee  for  creditors,  the 
court  should  of  its  own  motion  order  the  assignee  made  party,  Wilkins 
t'.  Lee,  42  S.  C.  31,  19  S.  E.  1016.  But  only  such  new  parties  can  be 
added  as  were  competent  parties  at  commencement  of  suit.  Burns  v. 
Campbell,  71  Ala.  271.  One  who  had  no  part  in  the  original  taking  can- 
not be  made  party  on  the  ground  merely  of  a  ratification  subsequent  to 
the  commencement  of  the  action,  Id.  In  Gamble  v.  Wilson,  33  Neb.  270, 
50  N.  W.  3,  it  was  said  that  the  court  was  under  no  duty  to  order  the 
proper  party  brought  in;  and  in  Kennett  v.  Fickel,  41  Kans.  211,  21  Pac. 
93,  it  was  held  that  the  defendant  had  no  right  to  bring  in,  as  parties, 
strangers  to  the  record  who  were  asserting  claim  to  the  goods. 

Intervention. — The  provision  of  the  code  that  "  where  a  person  not  a 
party  to  the  action,  has  an  interest  in  the  subject  thereto  and  makes 
application  to  the  court  to  be  made  a  party,  it  must  direct  him  to  be 
brought  in  by  proper  amendment,"  is  imperative.  Petitioner  claiming 
certain  corporate  bonds  under  a  deed  thereof  to  it  as  trustee,  is  entitled 
to  be  made  a  party  to  a  replevin  against  a  third  person  in  which  the 
same  bonds  are  demanded,  Michaelis  v.  Towne,  51  Ap.  Div.  466,  64  N.  Y. 
Sup.  751.  One  from  whose  possession  goods  have  been  taken  has  a 
right  independent  of  any  statute  to  appear  and  defend  his  title.  First 
National  Bank  v.  Hughes,  3  Neb.  Unof.  823,  92  N.  W.  986.  A  stranger 
to  the  suit  who  is  entitled  to  the  goods,  may  properly  intervene, 
Hamilton  v.  Duty,  36  Ark.  474;  Newton  v.  Round,  109  la.  286,  80 
N.  W.  391.  But  intervention  will  not  be  allowed  if  it  will  occasion  de- 
lay, Dupont  V.  Amos.  P7  la.  484,  66  N.  W.  774.  One  who  claims  merely 
as  a  creditor  represented  by  the  sheriff,  defendant,  who  attached  the 
goods  and  who  has  submitted  to  a  default,  cannot  intervene.  A  judg- 
ment in  favor  of  the  intervenor  in  such  case,  is  error.  Id.  But  it  seems 
that  the  creditor  may  in  such  case  move  to  set  aside  the  default  as 
against  the  sheriff  and  be  substituted  in  his  place.  Id.  Intervention  is 
not  allowed  in  bail  trover  under  the  laws  of  Georgia.  Central  Bank 
V.  Georgia  Co.,  120  Ga.  883,  48  S.  E.  325.  The  sureties  in  the  bond  lu 
such  case  are  not  entitled  to  intervene  and  tender  the  property  in  con- 
troversy, or  a  portion  of  it,  with  compensation  for  what  is  not  tendered; 
they  must  stand  or  fall  by  the  judgment  between  the  original  parties. 
Holmes  v.  Langston,  110  Ga.  861,  36  S.  E.  251.  Where  a  third  person 
claiming  the  goods  is  permitted  to  interplead,  the  plaintiff  having 
given  bond,  and  obtained  the  property,  no  direction  as  to  the  disposi- 
tion thereof  will  be  made  until  the  determination  of  the  action,  Wright, 
etc..  Works  v.  New  York  Co.,  44  Misc.  580,  90  N.  Y.  Sup.  130.  The  in- 
tervenor is  in  effect  a  plaintiff  and  must  show  the  facts  constituting  his 
right,  Schmitt  Co.  v.  Mahoney,  60  Neb.  20,  82  N.  W.  99.  Objections  as 
to  the  form  of  the  intervention  must  be  raised  promptly.  All  objections 
are  waived  by  submitting  the  matter  to  the  jury.  Noble  v.  Worthy,  1 
Jnd.  T.  458,  45  S.  W.  137. 

Substitution  of  Parties. — The  court  may  substitute  the  real  parties 


PARTIES.  537 

interested  in  the  defense  of  the  suit  for  the  sheriff  who  js  the  nominal 
defendant,  they  having  indemnified  him  and  there  being  no  question 
as  to  their  responsibility.  Jakobi  r.  Gorman,  50  N.  Y.  St.  202,  21  N.  Y. 
Sup.  762.  If  the  sheriff  has  submitted  to  a  wilful  default  it  is  an  addi- 
tional and  sufficient  reason  for  the  substitution.  Id.  The  statute  pro- 
viding that  "  if  any  person  not  a  party  to  the  action  should  claim  to  be 
the  owner  *  *  *  he  shall  not  institute  another  action  *  *  * 
but  make  oath  of  his  claim  and  file  it  with  the  officer  taking  the  prop- 
erty ♦  *  *  or  with  the  clerk  of  the  court  *  *  •  ;  after  the 
trial  of  the  action  of  replevin  an  issue  shall  be  made  up  between  the 
successful  party  and  such  claimant  *  *  *  a  trial  had  and  such 
claimant  shall  be  considered  plaintiff  in  such  issue."  Held,  that  one 
filing  the  affidavit  provided  for  does  not  thereby  become  a  defendant  in 
the  original  action,  that  until  the  issue  is  determined  between  the 
original  parties  no  issue  can  be  made  up  between  such  claimant  and 
either  of  the  original  parties;  that  until  such  determination  it  can  not 
be  known  who  the  claimant's  adversary  is  or  will  be,  that  to  render  a 
judgment  in  favor  of  the  claimant  and  against  the-  plaintiff  by  default 
before  disposition  of  the  action  between  the  plaintiff  and  defendant,  is 
error.  Ettringham  r.  Handy,  60  Miss.  334.  The  claimant  under  the  stat- 
ute is  not  required  to  file  any  bill  of  particulars  of  his  damages,  or  to 
claim  damages  specifically,  Id.  In  Iowa,  it  was  held  that  a  statute 
providing  that  the  sheriff,  defendant  in  an  action  of  replevin,  should 
be  entitled  to  substitute,  as  defendant,  the  plaintiff  in  the  process  under 
which  he  seized  the  goods,  and  himself  be  discharged,  is  unconstitu- 
tional; that  the  aggrieved  party  is  entitled  to  look  to  the  one  who  did 
the  wrong,  and  cannot  be  required  to  look  to  another,  Sunberg  v.  Bab- 
cock.  61  la.  602.  16  N.  W.  716.  In  Flanders  v.  Lyon,  51  Neb.  102,  70  N. 
W.  524,  it  was  held  that  the  assignee  of  the  plaintiff,  who  has  replevied 
the  goods,  cannot  be  substituted;  that  defendant  is  entitled  to  judg- 
ment against  plaintiff  for  return,  and  this  right  cannot  be  defeated  by 
transfer  and  substitution.  A  statute  that  "  In  an  action  against  the 
sheriff  for  the  recovery  of  property  taken  in  execution,  etc.,"  the  court 
may  order  the  substitution  of  the  execution  creditor,  does  not  authorize 
such  substitution  after  judgment;  and  such  substitution  does  not  confer 
a  right  of  action  ui)on  the  bond,  HIcklln  r.  Nebraska  Bank,  8  Neb.  463. 
In  Kreibohm  v.  Yancey,  154  Mo.  67,  55  S.  W.  260,  It  was  held  thai  where 
a  new  plaintiff  Is  sul)stltuted  the  court  may  make  it  a  condition  that  a 
new  bond  shall  be  executed. 

Bailee  sued  In  replevin,  may  by  consent  of  parties  bo  discharged  and 
the  real  party  In  Intercfst  substituted,  Harris  i'.  Harris.  43  Ark.  535;  but 
where  plaintiff  knowing  the  claims  of  a  third  person  to  the  goods, 
omItH  him,  and  joins  John  Doc,  he  will  not  l)e  permitted  afterwards 
against  the  will  of  such  third  perKon,  to  substitute  hini  as  a  defendant 
in  place  of  Doe.  The  court  asRlgn  as  a  reason  tluit  It  Ih  not  dear  that  he 
would  l>e  protected  |»y  the  undertaking,  Hoi-hnian  v.  Hau|)tman,  76 
Ap.  DIv.  72,  7S  N.  Y.  Sup.  65;>.  The  Hul>Hlltut<-d  derenilaiil  will  not  be 
heard  to  objeet  that  the  bailee  whh  Improperly  sued.  /</  ,•  nor  to  ol)j«»«t 
to  the  cromplalnt.   If  Kufficlent  an  aitaiuHl   the  original   defendant.  Van 


538  THE  LAW  OF  REPLEVIN. 

■Gundy  v.  Carrigan  ,4  Ind.  Ap.  333,  30  N.  E.  933.  Id.  Where  an  assignee 
for  creditors,  plaintiff  in  replevin,  dies,  pending  the  action,  it  is  properly- 
revived  in  the  name  of  his  successor  as  assignee,  and  not  in  the  name 
of  his  administrator,  Greer  v.  Howard,  41  O.  St.  591.  Where  a  col- 
lector of  a  decedent's  estate  institutes  replevin,  the  administrator, 
upon  his  appointment,  before  final  judgment,  should  be  substituted 
as  plaintiff,  Loven  v.  Parson,  127  N.  C.  301,  37  S.  E.  271.  The  substitu- 
tion as  plaintiff  of  a  corporation  in  which  the  plaintiffs  named  are 
interested  and  which  was  the  owner  of  the  goods,  and  entitled  to 
possession  at  the  institution  of  the  suit,  is  not  permissible,  Liebmann 
V.  McGraw,  3  Wash.  520,  28  Pac.  1107.  One  who  has  made  no  de- 
mand for  the  goods,  nor  given  any  bond,  cannot  be  substituted  as 
plaintiff,  even  though  upon  the  facts  he  should  have  been  plaintiff, 
and  the  nominal  plaintiff  in  all  things  done,  claimed  under  the  title  of 
such  third  person.  Pierce  i\  Batten,  3  Kans.  Ap.  396,  42  Pac.  924.  Sev- 
eral executions  at  the  suit  of  different  creditors  are  levied  by  the 
sheriff  upon  a  stock  of  goods;  a  stranger  to  the  writ  suing  for  the 
goods  has  one  single  cause  of  action  against  the  sheriff;  and  if  the  credi- 
tors are  substituted,  they  are  liable  jointly.  Tootle  v.  Berkley,  57  Kans. 
Ill,  45  Pac.  77.  Where  parties  cause  themselves  to  be  substituted  for  the 
sheriff,  they  cannot  complain  of  the  substitution,  if  judgment  is  given 
against  them,  Romick  v.  Perry,  01  la.  238,  16  N.  W.  93.  The  fact  that 
persons  to  whom  the  plaintiff  voluntarily  surrenders  the  goods,  pending 
suit,  give  bond  "  to  perform  the  final  judgment  in  the  suit,"  does  not 
make  them  parties,  and  judgment  cannot  go  against  them,  Myers  v. 
Credle,  63  N.  C.  504. 

Death  of  Party,  or  Transfer. — ^^The  defendant  cannot  be  barred  of  his 
right  to  a  return  of  the  goods  by  the  plaintiff's  death,  removal  from 
the  jurisdiction,  or  voluntary  abandonment  of  his  cause,  Corbett  v. 
Pond,  10  Ap.  D.  C.  17.  The  bond  being  conditioned  to  abide  by  and  per- 
form the  judgment,  the  sureties  are  virtually  parties  to  the  action,  Id. 
Upon  the  death  of  the  plaintiff  the  cause  may  be  prosecuted  against  the 
sureties.  Id.  And  the  defendant  may  have  a  jury  to  assess  the  damages 
and  may  have  judgment  for  return  of  the  goods,  and  judgment  against 
the  surety  for  his  damages  as  assessed,  Id. 

The  plaintiff's  transfer  or  sale  of  the  goods  pending  the  action,  does 
not  work  an  abatement.  Wall  v.  Demitkiewicz,  9  Ap.  D.  C.  109.  The 
statute  providing  that  replevin  shall  survive  allows  the  revival  of  the 
action  against  the  administrator  of  the  defendant,  McCrory  v.  Hamil- 
ton, 39  Ills.  Ap.  490. 


PLEADING. 


539 


CHAPTER  XX. 


PLEADING. 


Section. 

Pleading 648 

Established  rules  govern  .  .  649 
The  affidavit  .  .  .  .650 
A  prerequisite  to  delivery  .  .  651 
Must  not  be  entitled  .  .  .  652 
Must  be  drawn  to  meet  the  evi- 
dence          653 

Takes  the  place  of  the  plaint     .  654 
By  wiioin  made.     General  re- 
quisites      G55 

Meaning  of  the  term  oicner      .  656 
Defects   in,  wiien  to  be  taken 

advantage  of,  and  how  ,        .  657 
The  truth  of  the  affidavit  not  in 

issue 658 

Statement  of  value  of  the  prop- 
erty   659 

Statement  of  value  in  affidavit, 

how  far  binding       .         .         .  660 
Must  state  that  the  projjerty  was 
not  taken  for  any  tax,  assess- 
ment or  fine     ....  661 
Or   upon  execution   or  attach- 
ment, etc 662 

Or  upon  writ  of  replevin  against 

plaintifT 603 

Strict    compliance    witii    these 

conditions  required         .         .  604 
Must  contain  a  correct  descrip- 
tion of  the  projMirty  ;  amcnd- 
meiiUi 005 


Section. 

The  declaration  ;  several  counts 
joined 666 

Rights  of  parties  under  a  single 
count 667 

Count  in  trover  for  goods  not 
delivered 068 

Value  of  such  goods  usually 
given  in  damages     .         .         .  669 

Form  of  the  declaration;  wrong- 
ful detention    ....  670 

Allegation  of  wrongful  taking  ; 
special  damages  must  be  spe- 
cially alleged  ....  671 

The  same.  Special  require- 
ments      .....  673 

The  same.  Allegations  as  to 
time  and  place         .        .        .  073 

The  same     .....  674 

Averment  of  wrongful  deten- 
tion essential   ....  675 

Evidence  of  title  not  necessjiry 
to  be  staled      ....  670 

The  same.  An  averment  of 
right  of  possession  sufficient.    077 

Tlie  sjime.     Observations  .         .  678 

Where  the  complaint  follows 
tlie  statute        ....  079 

Declaration    slioiild   state    vahie 
of  goods 080 

AvrrmiMit  of  diMuand  .         .  OSI 

Must  claim  damagrs  .  .  0H2 


§  048.     Pleading.     Tlic  plcadiiij^.s  in  replevin  at  conimoii  law 
were  cornplicat^'d  and  [M-culiar  to  this  action.'     'Pliey  luive,  liow- 

'  FloblnHon  v.  Calloway,  4  Ark.  100;  .Soiilli.ill  v.  (larntT.  2  LeiKhH. 
(Va.  ^  372;  RoKerH  r.  Arnold.  11!  Wend.  31;  CJIIh.  on  Il.-plevln.  ll'.l;  1  Ch 
Plea,  title  Replevin;   Woodf.  on  L.  ii  T.  &88;   Bacon  Abr.  titio  Replevin 


540  THE  I.AW  OF  REPLEVIN. 

ever,  been  greatly  simplified  by  inoclerii  legislation,  aided  by  the 
liberal  construction  of  the  courts.  The  limits  of  this  work  will 
not  permit  the  consideration  of  any  of  the  local  statutes ;  a  state- 
ment of  the  general  principles  is  all  that  can  be  attempted. 

§  649.  Established  rules  govern.  Established  rules  and 
precedents  should,  in  all  cases,  be  followed.  Any  unnecessary 
departure  from  the  recognized  procedure,  whether  it  arise  from 
love  of  change,  or  from  carelessness  or  ignorance,  should  not  be 
encouraged.'  Statutory  provisions  where  they  exist,  whether  they 
relate  to  the  forms  of  pleading  or  mode  of  procedure,  must  be 
strictly  followed.^  Each  State  has  its  own  peculiar  laws  which 
govern  its  practice.  These  are  constantly  being  changed,  and  any 
attempt  to  state  them  would  be  likely  to  mislead. 

§  G50.  The  Affidavit.  The  first  step  in  the  proceeding  is  the 
affidavit.  This,  though  not  a  part  of  the  record,*  is  one  of  the 
most  important  papers  in  the  case.  It  is  essential  in  all  cases 
where  the  plaintiff  desires  a  delivery  of  the  property  pending  the 
action.  In  many  of  the  States  the  plaintiff  may  elect  to  begin 
and  prosecute  his  suit  without  asking  delivery  of  the  goods  prior 
to  judgment.  Under  such  circumstances  neither  affidavit  nor 
bond  is  necessary.^ 

§  651.  A  prerequisite  to  delivery.  In  all  cases  where  the 
plaintiff  asks  a  delivery  of  the  goods  in  the  first  instance,  the 
affidavit  is  a  prereciuisite  to  the  issuing  of  the  writ  or  order  for 
delivery.  Without  it  the  writ  would  be  a  nullity  if  issued,  and 
the  suit  must  fail."     The  affidavit  is  in  no  way  essential  to  the 

and   Avowry.     Both  parties  are  plaintiff;    each   may   claim  judgment. 
Seymour  v.  Billings.  12  Wend.  286;    Persse  v.  Watrous,  30  Conn.  146; 
Brown  v.  Smith,  1  N.  H.  36;  McLarren  v.  Thompson,  40  Me.  285;  Poor 
V.  Woodburn,  25  Vt.  239. 
^McPherson  v.  Melhinch,  20  Wend.  671;   Anstice  v.  Holmes,  3  Denio, 

245.' 

'Pirani  v.  Barden,  5  Ark.  81.  When  petition  complies  substantially 
with  the  provision  of  the  statute,  it  is  sufficient.  The  form  or  words  of 
the  statute  need  not  be  literally  followed.  Smith  v.  Montgomery,  5 
Iowa,  371;  Auld  v.  Kimberlin,  7  Kan.  601;  Busick  v.  Bumm,  3  Iowa,  63. 

«Town  V.  Wilson,  8  Ark.  (3  Eng.)  465;  Loomis  v.  Youle,  1  Minn.  175; 
Cox  V.  Grace,  5  Eng.  (Ark.)  86.     Contra,  see  Newell  v.  Newell,  34  Miss. 

385. 

"Baker  v.  Dubois,   32   Mich.  92;    Catterlin  v.   Mitchell,   27   Ind.   298; 

Hodson  V.  Warner,  60  Ind.  214. 

•Wilbur  V.  Flood,  16  Mich.  40;  Milliken  v.  Selye,  6  Hill,  623;  S.  C,  13 


PLEADING.  541 

trial  of  the  case.'  It  is  not  evidence  and  does  not  prove  or  tend 
to  prove  the  plaintitt"s  title  to  the  property,  tliough  its  statements 
as  to  value  of  the  property  may  sometimes  be  taken  to  estop  the 
plaintiff  who  made  it  from  asserting  a  different  value.*  Its  truth 
or  falsity  is  not  a  question  at  issue  on  the  trial.' 

§  652.  Must  not  be  entitled.  The  affidavit  must  not  be 
entitled  in  the  suit.  The  reason  is  that  at  the  time  of  making  it 
there  is  no  suit  pending.'" 

§  653.  Must  be  drawn  to  meet  the  evidence.  The  aflB- 
davit  should  be  framed  with  a  view  to  the  evidence  which  will  be 
produced  at  the  trial.  If  the  action  be  for  a  wrongful  detention, 
proof  of  a  wrongful  taking  would  sustain  such  an  averment  with- 
out proof  of  demand."  Proof  of  a  wrongful  detention,  however, 
will  not  sustain  an  averment  of  a  wrongful  taking.  If  the  evi- 
dence will  sustain  an  averment  of  wrongful  taking,  it  is  advisable, 
as  simplifying  the  question  of  damages,  that  the  .declaration  con- 
tain such  a  count.  Tlie  averments  in  both  the  writ  and  declara- 
tion shouvd  follow  the  plaint  or  affidavit.'" 

§  654.  Takes  place  of  the  plaint.  Tlio  affidavit  takes  the 
place  of  the  plaint,  or  rather  it  is  the  plaint,  the  word  having 

Denio,  57;  Perkins  v.  Smith,  4  Blackf.  302;  Bridge  v.  Layman.  31  Ind. 
385;  Payne  v.  Bruton,  5  Eng.  (Ark.)  57;  Cutler  v.  Rathbone,  1  Hill,  204; 
Kehoe  v.  Rounds,  69  111.  352;  McClaughry  v.  Cratzenberg,  39  111.  123; 
Stacy  V.  Farnham,  2  How.  Pr.  Rep.  26;  Phenix  v.  Clark,  2  Mich.  327. 
Sheriff  or  coroner  cannot  administer  the  oath.  Berrien  v.  Westervelt, 
12  Wend.  194. 

'Town  V.  Wilson,  8  Ark.   (3  Eng.)  464. 

'  See  post,  8  658. 

•Payne  v.  Bruton,  5  Eng.  (Ark.)  57;  Town  v.  Wilson,  8  Ark.  (3  Eng.) 
465. 

'•Rex  V.  Jones.  1  Str.  704;  Haight  v.  Turner,  2  John.  371;  People  v. 
Tioga  C.  P.,  1  Wend.  292;  Hollis  v.  Brandon.  1  Bos.  &  Pull.  30;  King  v. 
Cole.  6  Term  R.  298  and  640;  Whitney  v.  Warner.  2  Cow.  500;  Nichols 
r.  Cowles.  3  Cow.  345;  Millikcn  v.  Selye.  3  Denio.  57;  Stacey  v.  Farn- 
ham. 2  How.  Pr.  Rep.  26.  But  see  and  compare  in  this  respect.  In  rr 
Bronson  and  Mitchell.  12  Johns.  460.  and  note.  The  venue  must  Im 
Btated.    Compare  Cook  v.  Staats,  18  Barb.  407. 

•'OleBon  V.  Merrill.  20  Wis.  462;  Stlllman  v.  Squire.  1  Denio.  327; 
Cummlngs  r.  Vorce.  3  Hill.  282;  Pierce  r.  Van  Dyke.  6  Hill.  613;  Cox  v. 
Grace.  10  Ark.  87. 

"Newell  r.  Newell.  34  MIhh.  386.  In  llllnoJH  It  is  not  nccoHsiiry  to 
allPRe  a  wrongful  taking  or  oven  a  wrongful  dftmlion  by  the  di-fcndant. 
WhiHtler  V.  RobertH.  I'J  III.  274.  But  thla  cannot  be  stated  to  be  the  gen- 
eral rule. 


542  THE  LAW  OF  REPLEVIN. 

the  same  meaning  that  it  liad  in  the  Statute  of  ]\Iarlbriclge. 
That  statute  required  that  there  shoukl  be  a  "  plaint,"  i.  e.,  com- 
plaint. Tins  was  simply  a  statement  to  the  sheriff  of  the  Avrong- 
ful  taking,  upon  wliieh  he  made  the  delivery.  There  appears  to 
be  no  authority  for  saying  that  it  was,  at  that  time,  retiuired  to 
be  in  writing.  The  affidavit  of  modern  practice  is  the  "com- 
plaint "  of  olden  time." 

§  655.  By  whom  made.  General  requisites.  The  affi- 
davit may  be  made  by  the  i)laintifl',  or  some  one  in  his  l)ehalf ; 
when  made  by  an  agent,  its  averments  must  be  as  positive  as  those 
required  from  the  principal.'*  It  must  be  in  writing,  and  signed 
by  the  plaintiff,  or  his  agent  making  it.'-^  There  are  cases,  how- 
ever, which  hold  that  an  affidavit  purporting  to  be  sworn  to  by 
plaintiff,  and  certified  to  lie  sworn  to  by  him,  is  good  without 
signature.'*  It  must  state  that  the  plaintiff  is  the  owner,  and 
entitled  to  the  immediate  possession  of  the  goods  a])out  to  be 
replevied.  The  statutory  requirements  of  the  different  States  vary 
somewhat  as  to  what  is  necessary  to  be  stated  in  the  affidavit,  but 
they  all  substantially  agree  with  the  common  law  upon  this 
point.'' 

§656.  Meaning  of  "  owner."  The  term  "owner,"  as  used 
in  this  connection,  does  not  import  absolute  ownership ;  any 
special  interest  in  the  property  Avill  be  sufficient.'**     In  Ohio  this 

"Anderson  v.  Hapler,  34  111.  439.  [The  complaint,  if  verified,  and 
containing  the  requisites  of  the  statute,  may  serve  as  the  affidavit, 
Louisville  Co.  v.  Payne,  103  Ind.  188,  2  N.  E.  582;  Harris  v.  Castle- 
berry,  Ind.  Ter.,  64  S.  W.  541;  Bobilya  v.  Priddy,  68  O.  St.  373, 
67  N.  E.  736;  and  will  give  jurisdiction,  Lewis  v.  Connolly,  29  Neb. 
222,  45  N.  W.  622;  Hudelson  v.  First  National  Bank,  51  Neb.  557,  71 
N.  W.  304;  but  if  sworn  on  information  and  belief,  merely,  it  will  not 
suffice,  Lewis  r.  Connolly,  supra.'] 

"  Frink  v.  Flanagan,  1  Gilm.  (111.)  37.  See,  also,  Branch  v.  Branch, 
6  Fla.  315. 

"Eddy  V.  Beal,  34  Ind.  161. 

"Jackson  v.  Virgil,  3  Johns.  540;  Shelton  v.  Berry,  19  Tex.  154; 
Crist  V.  Parks,  19  Tex.  234;  Haff  v.  Spicer,  3  N.  Y.  Term,  (Ca.  Ca.)  190. 
"When  affidavit  was  signed  by  G.  W.  and  R.  Hoover,  and  sworn  to  by 
both,  held  sufficient.    Hoover  r.  Rhoads,  6  Iowa,  506. 

"  In  Arkansas  plaintiff  must  swear  that  the  cause  of  action  occurred 
within  two  years.  Payne  v.  Burton,  5  Eng.  (Ark.)  57.  See  Milliken  v. 
Selye.  3  Denio,  56. 

"Johnson  v.  Carnley,  6  Seld.  (N.  Y.)  578;  Sprague  v.  Clark,  41  Vt. 
6;  Williams  v.  West,  2  Ohio  St.  83;  Rogers  v.  Arnold,  12  Wend.  35. 


PLEADING.  543 

question  was  directly  presented.  It  was  objected  that  the  statute 
said,  "  If  any  person  shall  wrongfully  detain  the  goods  and  chat- 
tels of  another,  the  '■owner,'  his  agent  or  attorney,  may  tile,  etc., 
etc.,"  and  the  court  said  in  substance  :  It  is  the  possessory  title, 
and  not  tiie  general  ownership,  which  must  be  sworn  to.  Owner- 
ship without  a  right  to  immeiliate  possession  wiU  not  enable  a  man 
to  make  the  statutory  affidavit;  but  a  right  to  innnediate  posses- 
sion, without  general  ownership,  will.  If  the  word  f)wner  in  the 
statute  meant  the  owner  i»f  the  general  title,  then  an  owner  of  a 
special  title,  such  as  a  lease,  even  though  entitled  to  possession, 
could  not  sustain  the  action  even  against  a  trespasser.  To  hold 
that  a  person  with  a  limited  or  special  title  cannot  make  the 
affidavit  to  sustain  this  action,  would  destroy  the  nniforra  prac- 
tice, and  frequently  result  in  irrei)arable  mischief.  The  affidavit 
must  be  sworn  to  before  the  proper  officer;  in  the  ab.sence  of 
statutory  provisions  the  sheritt"  or  coroner  cannot  administer  the 
oath." 

§  657.  Defects  in  ;  when  to  be  taken  advantage  of  and 
how.  Formal  defects  in  the  affidavit  must  be  taken  advantage 
of  before  i)leading  to  the  merits  ;  if  not,  they  will  be  considered 
as  waived.™  Objections  to  the  affidavit  nnist  be  taken  by  motion 
or  by  plea  in  abatement ;  not  by  demurrer,"  the  reason  being  that 
demurring  will  not  reach  matters  outside  the  record,  and  the  affi- 
davit is  not  a  part  of  the  record."  So,  where  the  objections  U* 
the  affidavit  are  taken  by  motion,  the  motion  onglit  to  .set  out  and 
crave  oy^r  of  it;  otherwi.se  the  court  may  refuse  to  examine  or 
pass  ui)on  it.  " 

§  0^>x.     The  truth  of  the  affidavit  not  in  issue.     The  trnth 

'•Berrien  v.  Westervelt,  12  Wend.  194.  If  a  complaint  (declaration) 
contains  all  that  Is  necessary  in  an  affidavit,  and  Is  sworn  to  and  filed 
before  the  writ  issues,  the  want  of  a  separate  affidavit  on  separate  |)aper 
cannot  be  objected  to.  Minchrod  r.  Wlndoes,  29  Ind.  288.  See,  also. 
Perkins  v.  Smith.  4  Blackf.   (Ind.)   299. 

"Defects  In  affidavits  are  waived  if  defendants  appear  and  ko  ti) 
trial  without  objection.  Smith  r.  Kmerson,  IC.  Ind.  355.  Sec  Tripp  v. 
Howe.  45  Vt.  r,23:  Eddy  v.  Heal.  34  Ind.  ItU;  Lewis  v.  BrackcnrtdKe.  1 
Blackf.  112;  Baker  v.  Dubois.  32  Mich.  92;  Perkins  v.  Smith.  4  Blackf. 
(Ind.)   299;   Frink  v.  FianaRan.  1  Ollm.  38. 

»'  De  Wolf  V.  Harris.  4  Mason  C.  C.  515. 

"Cox   V.  Grace.  5  EnR.   (Ark.)   8fi. 

"Town  t".  Wilson,  3  Eng.  (Ark.  \   4<')4. 


544  THE  LAW  OF  REPLEVIN. 

or  falsity  of  the  affidavit  is  not  a  question  which  can  be  enquired 
into  upon  the  trial,  except  so  far  as  the  issues  may  go.  It  in  no 
way  att'ects  the  issues  ;  it  is  not  proof  for  tlie  party  making  it." 
The  want  of  one  may  be  brougiit  to  the  knowledge  of  the  court 
by  motion.  Xo  reason  is  pereeived  why  defects  in  an  affidavit 
may  not  be  taken  advantage  of  by  properly  pointing  them  out  by 
a  motion  in  writint;-.  In  many  of  the  States  this  would  be  suffi- 
cient, though  a  plea  hi  abatement  is  more  technical  and  exact. 
AV^hen  the  motion  shows  the  want  of  an  affidavit,  the  plaintiff  may 
show  that  it  is  lost,  and  ask  and  obtain  leave  to  supply  its  place." 
This  cannot  be  done  by  the  clerk,  or  by  simply  filing  a  new  affi- 
davit with  him  ;  the  court  nuist  make  the  order  after  an  examina- 
tion into  tlie  question  as  to  whether  it  is  a  copy  or  not  of  the 
instrument  offered. 

§  (J59.  Statement  of  value  of  property.  The  common  prac- 
tice in  most  of  the  States  is  for  the  affidavit  to  state  the  value  of 
the  property .="  This  is  usually  accepted  as  the  true  value  by  the 
sheriff  when  he  comes  to  take  bond.  However,  this  is  not  obliga- 
tory upon  him.  Wlien  no  appraisement  is  required  by  the  stat- 
ute, he  must  be  the  judge  as  to  whether  the  value  stated  in  the 
affidavit  is  sufficient.  If  he  is  of  opinion  it  is  not,  he  should 
require  bond  in  double  such  sum  as  he  believes  to  be  the  true 
value."  For  any  failure  to  take  adequate  bond,  he  will  be  liable.''* 
In  many  of  the  States  the  statute  requires  an  appraisement ;  -' 
and  such  value  so  ascertained  is  to  govern  the  ofl&cer  in  fixing  the 
amount  of  the  bond. 

§  GGO.  Statement  of  value  in  affidavit  ;  how  far  binding. 
The  statements  in  the  aflBdavit  as  to  value  usually  bind  the  plain- 
tiff in  any  subse(iuent  suit  between  the  same  parties,  on  the  bond, 
or  in  the  assessment  of  damages.  The  sworn  statement  of  value 
made  at  a  time  when  he  is  seeking  to  recover  the  property  will 

"Payne  v.  Bruton,  5  Eng.  (Ark.)  57;  Dennis  v.  Crittenden,  3  Hand. 
(42  N.  Y.)  544. 

°  Morgan  v.  Morgan,  31  Miss.  546. 

=''Deardorff  v.  Ulmer,  34  Ind.  353;   Schaffer  v.  Faldwesch,  16  Mo.  339. 

=' Kimball  v.  True.  34  Me.  88;  People,  etc.,  v.  Core,  85  111.  248;  Roach 
V.  Moulton,  1  Chand.  (Wis.)  187;  Pomeroy  v.  Trimper,  8  Allen,  398; 
Deardorff  v.  Ulmer,  34  Ind.  353;  Murdock  v.  Will,  1  Dall.  341. 

"  People,  etc.,  v.  Core,  85   111.   248. 

^•Watkins  v.  Page,  2  Wis.  92;  Caldwell  v.  West,  1  Zab.  (N.  J.)  411. 


PLEADING.  545 

estop  him  from  asserting  a  different  one  at  another  time.  The 
defendant  is,  of  course,  in  no  way  bound  by  it.'" 

§  661.  Must  state  that  the  property  was  not  taken  for 
any  tax,  assessment  or  fine.  Another  provision,  common  to 
the  statutes  of  all  the  Stiites  is,  the  affidavit  nuist  state  that  the 
property  was  not  taken  for  any  tax,  assessment  or  fine  levied  by 
virtue  of  any  law  of  the  State.  This  requirement  is  imperative." 
When  the  affidavit  states  that  the  property  had  not  been  seized 
for  any  legal  tax,  it  was  held  to  imply  that  it  was  taken  for  a  tax 
of  some  sort,  and  the  court  should  dismiss  the  suit,  on  motion.*' 
When  it  stated  that  the  property  was  not  taken  in  execution  for 
any  tax,  assessment  or  fine,  the  court  said  this  may  be  true,  and 
still  the  property  may  have  been  distrained,  and  the  affidavit  was 
held  insufficient.*^ 

§  662.  Or  upon  execution  or  attachment,  etc.  The  affi- 
davit must  also  state  that  the  property  has  not  been  seized  by 
virtue  of  any  execution  or  attachment  against  the  goods  and  chat- 
tels  of  the  plaintiff  liable  to  execution  or  attachment."  So,  where 
the  plaintiff  was  a  supervisor  of  his  township,  authorized  by  law 
to  keep  and  preserve  the  books  and  paper?}  belonging  to  his  office, 
the  fact  that  the  property  was  not  legally  subject  to  seizure  on  an 
execution  or  for  a  tax  did  not  absolve  the  supervisor  from  the 
necessity  of  stating  in  his  affidavit  that  it  was  not  so  taken.  The 
requirements  of  the  statute  are  imperative,  and  the  nature  of  the 
property  makes  no  ditt'erence.^^  There  are  cases,  however,  where 
the  rule  does  not  apply.  In  Vermont  and  Connecticut  the  writ 
was  formerly  employed  cliicfly  to  recover  goods  seized  on  attach- 
ment. The  proceedings  in  such  cases,  however,  were  governed 
by  local  statutes 

§  663.  Or  upon  any  writ  of  replevin  against  the  plaintiff. 
In  .some  States  the  statutes  rccjuire  the  affidavit  to  sUite  that  the 
properly  for  wliir-h  the  suit  is  brought  has  not  been  takc!i  upon 
any  writ  of  replevin  or  order  for  delivery  in  such  action  ;  and  it 
may  Ikj  said,  generally,  that  the  law  will  not  permit  cross-replevin. 

"See  S  453,  and  the  raHeg  there  filed. 

"Phenix  I'.  Clark,  2  Mich.  .327;  Mt.  Carbon,  etc.,  v.  Andrewu,  53  III. 
182. 

".McClauKhry  v.  CratzenbcTK,  .'{'J  III.  123. 
■•Caniplicil   V.   Head.   13   III.    12»',. 
»*  Bridges  v.  I.Aynian,  31   Ind.  385. 
"Phenlx  V.  Clark,  2  Mkh.  327. 
3.1 


546  THE  LAW  OF  REPLEVIN. 

But  it  has  been  said  this  will  not  prevent  the  plaintiff  from  hav- 
ing this  action  npon  a  title  which  accrued  to  liini  after  the  seizure, 
nor  in  cases  when  the  execution  was  V(^)id/* 

§  664.  Strict  compliance  with  this  condition  required. 
An  affidavit,  therefore,  which  staled  that  the  proi)erty  was  not 
taken  on  any  execution  or  judgment  against  the  plaintiff,  or  any 
other  mesne  or  final  process  whatsoever,  will  not  be  sufficient." 
A  strict  compliance  with  all  these  statutory  reciuisites  is  essen- 
tial; the  object  of  the  law  being  to  prevent  the  employment  of 
this  action  in   the  excepted   cases.'*     The   law   furnishes  other 

*•  Williams  v.  West,  2  Ohio  St.  89.  Contra,  see  Wilson  v.  Macklin,  7 
Neb.  5L 

""Auld  V.  Kimbeiiin,  7  Kan.  601. 

'^  Westenberger  v.  Wheaton,  8  Kan.  169. 

Note  XXX.  Affidavit. — The  affidavit  is  the  commencement  of  the  ac- 
tion; if  the  goods  are  not  then  detained  by  defendant,  the  action  is  pre- 
mature, Wheeler  Co.  v.  Teetzlaff,  53  Wis.  211,  10  N.  W.  155.  The  statu- 
tory requirements  must  be  strictly  complied  with,  Spencer  v.  Bidwell,  49 
Conn.  61.  If,  in  fact,  sworn  before  the  writ  issued,  the  failure  of  the 
officer  to  affix  his  jurat,  is  not  fatal;  it  may  be  affixed  after  the  objec- 
tion is  raised,  Peterson  v.  Fowler,  76  Mich.  258,  43  N.  W.  10; — and  even 
after  appeal  the  plaintiff  may  subscribe  the  affidavit  filed  with  the 
justice  of  the  peace,  which  was  in  fact  sworn  before  the  justice,  Crura 
V.  Elliston,  33  Mo.  Ap.  591.  The  affidavit,  if  in  fact  sworn,  confers 
jurisdiction,  though  not  subscribed,  Bloomingdale  v.  Chittenden,  75 
Mich.  305,  42  N.  W.  83G; — and  the  omission  of  the  affiant's  signature  to 
the  copy  of  the  affidavit  required  to  be  served  with  the  writ,  will  not 
support  a  plea  in  abatement,  Mathai  v.  Capen,  65  Conn.  539,  33  Atl. 
495.  In  Illinois  the  affidavit  in  actions  before  a  justice  of  the  peace,  is 
jurisdictional,  and  if  wanting,  defendant  may  move  to  dismiss  even 
upon  his  own  appeal  to  the  Circuit  Court,  and  after  the  lapse  of  several 
terms,  Evans  v.  Bouton,  85  Ills.  579.  Only  where  an  affidavit  is  filed 
containing  all  the  statutory  requisites  does  the  justice  acquire  juris- 
diction, Clendenning  v.  Guise,  8  Wyo.  91,  55  Pac.  447;  Simmons  v. 
Robinson,  101  Mich.  240,  59  N.  W.  623.  In  New  York  no  affidavit  of 
value  is  required  before  a  justice  unless  the  plaintifT  requires  an  im- 
mediate delivery,  Young  v.  Carey,  61  N.  Y.  Sup.  508.  Where  the  statute 
provides  that  the  action  "  shall  not  be  brought "  until  a  specified  affi- 
davit is  filed,  the  omission  of  substantial  compliance  is  fatal  at  any 
stage,  even  upon  appeal,  though  no  objection  was  started  in  the  justice 
court,  Armour  v.  Arres,  5  Neb.  Unoff.  383,  98  N.  W.  843.  Where  the 
statute  makes  the  affidavit  a  prerequisite  to  the  allowance  of  the  writ, 
and  provides  that  in  case  of  a  special  property  claimed  the  facts  in 
relation  thereto  shall  be  stated,  the  affidavit  must,  where  the  action  is 


PLEADING.  547 

means  to  control  wrongful  seizure  in  these  cases,  but  will  not 
permit  the  withdrawal  of  the  property  pending  the  inquiry  as  to 
the  seizure. 


founded  upon  a  chattel  mortgage,  set  forth  the  date,  that  the  debt  is 
due  and  unpaid,  when  it  matured,  or  violations  of  the  conditions  en- 
titling plaintiff  to  possession, — otherwise  the  writ  will  be  quashed, 
Eolin  r.  Fines,  51  Neb.  C50,  71  N.  W.  293;  Paxton  v.  Learn,  55  Xeb.  459, 
75  N.  W.  1096.  Not  alleging  unlawful  detention  by  the  defendant  it  is 
fatally  defective,  Hudelson  v.  First  National  Bank,  51  Neb.  557,  71  N.  W. 
304.  And  if  the  statute  require  the  value  to  be  stated,  the  omission  of 
this  statement  is  fatal  to  the  writ,  even  upon  appeal  from  the  justice 
to  the  district  court,  Barruel  v.  Irwin,  2  N.  M.  223.  Where  the  affi- 
davit fails  to  aver  that  plaintiff  is  entitled  to  Immediate  possession  the 
order  for  delivery  should  be  quashed,  Paul  r.  Hodges,  26  Kans.  225. 
Jurisdiction  depends  upon  the  sufficiency  of  the  affidavit;  it  is  a  pre- 
requisite to  the  issuance  of  the  writ,  or  the  order  for  the  delivery, 
Carlon  v.  Dixon.  12  Ore.  144,  6  Pac.  500.  Affidavit  that  plaintiff  is  en- 
titled to  possession  of  the  goods,  describing  them,  and  that  they  are  in 
possession  of  defendant,  and  are  not  subject  to  seizure,  etc.,  etc.,  is  a  sub- 
stantial compliance  with  the  statutory  requirement  that  the  affidavit 
must  show  detention  by  defendant,  Cartwright  v.  Smith,  104  Tenn.  689, 
58  S.  W.  331.  An  affidavit  by  an  agent,  averring  that  the  goods  were 
not  taken  in  execution  on  any  order  or  judgment  "  against  affiant," 
making  no  allusion  to  the  plaintiff,  is  insufficient  and  cannot  be 
amended,  Armour  v.  Arres,  supra.  Commercial  Bank  v.  Ketcham.  46 
Neb.  568,  65  N.  W.  201;  contra.  Fisher  v.  Brown,  111  Ills.  Ap.  491.  The 
phrase  "  belonging  to  the  plaintiff "  is  equivalent  to  the  statutory 
phrase.  "  owned  by  the  plaintiff,"  Dillard  t'.  Samuels,  25  S.  C.  319.  The 
affidavit  must  describe  the  goods  so  as  to  indicate  to  the  sheriff  what  is 
to  be  taken  under  the  writ,  Gchwietering  i\  Rothschild,  26  Ap.  Div.  614, 
50  N.  Y.  Sup.  206.  An  affidavit  aescriblng  the  goods  only  by  unintellig- 
ible characters,  is  not  sufficient.  Id.  VanDyke  v.  N.  Y.  Co..  18  Misc.  661, 
43  N.  Y.  Sup.  735.  An  affidavit  that  the  goods  "'  were  not  taken  In  exe- 
cution, etc.,  against  plaintiff  but  were  taken  by  execution  Issued  against 
plaintiff  on  a  void  judgment,"  is  defective;  plaintiff  will  not  be  per- 
mitted to  assail  the  validity  of  the  judgment,  Wilson  v.  Macklln,  7  Neb. 
50.  But  In  Muller  v.  Plue,  45  Neb.  701,  64  N.  W.  232,  it  was  held  that 
this  Interpretation  was  too  strict,  and  that  where  goods  are  seized  under 
execution  upon  a  void  juflgraent.  the  defendant  In  the  writ  may  re- 
plevy thf.-m,  and  CKtabllBhlng  the  Invalidity  of  the  judgnn-nt  will  pre- 
vail, and  see.  Iron  CllffH  Co.  v.  Lahals,  52  Mbh.  304,  18  N.  W.  121;  Halni 
V.  Nunn,  63  Iowa,  641.  19  N.  W.  810.  Affidavit  that  the  goods  "  were  not 
taken  from  plaintiff  by  any  procoHH  legally  and  properly  iHHued  againHt 
him,  or  if  80  were  exempt,"  Ih  Kufflrlent,  Carlson  v.  Small,  32  Minn.  439, 
21  N.  W.  480.  The  statute  required  an  affidavit  that  the  KOodH  were  not 
taken  In  execution  on  any  judgnionl  or  order  against  the  plulutlff  or 


548  THE  LAW  OF  REPLEVIN. 

§  665.     It  must  contain  a  correct  description  of  the  prop- 
erty.    Amendments.     The  affidavit  should  contain  a  correct 

for  the  payment  of  any  fine;  "  the  affidavit  omitted  the  conjunction 
"or";  held,  that  read  with  a  pause  after  the  word  "plaintiff,"  it  con- 
veyed the  proper  idea  and  was  sufficient,  Hudelson  v.  First  National 
Bank,  supra.  An  affidavit  which  states  that  affiant  is  entitled  to  pos- 
session of  the  goods,  is  sufficient,  though  it  omits  the  statutory  word 
"  immediate,"  Id.  The  affidavit  failed  to  aver  that  the  goods  "  had  not 
been  seized  under  any  order  of  delivery,  etc.,"  as  required  by  statute, 
but  it  did  aver  that  they  were  not  "  taken  in  execution  on  any  order  or 
judgment  against  plaintiff  or  any  order  of  court  under  any  other  mesne 
or  final  process  issued  against  plaintiff;  "  it  was  held  that  an  order  of 
delivery  is  "  an  order  of  the  court,"  and  that  the  omitted  clause  was 
adequately  covered,  so  that  the  affidavit  conferred  jurisdiction,  Scott  v. 
Jones,  7  Okla.  42,  54  Pac.  308.  The  statute  requiring  an  affidavit  stating 
that  affiant  "  believes  that  plaintiff  is  entitled  to  the  immediate  posses- 
sion, etc.,"  is  not  complied  with  by  an  affidavit  of  one  of  the  plaintiff's 
that  he  believes  that  "  he  as  trustee,  or  Anna,  his  wife  (the  other  plain- 
tiff) in  her  own  right,  is  entitled  to  immediate  possession,"  Spencer  v. 
Bidwell,  49  Conn.  61.  An  affidavit  describing  the  lumber  demanded  as 
"  North  Carolina  pine,"  and  giving  an  itemized  statement  of  the  differ- 
ent sizes,  grades  and  uses  of  the  lumber,  is  sufficient.  Sloan  v.  Imple- 
ment Co.,  25  Misc.  451,  55  N.  Y.  Sup.  558.  The  provision  of  the  code 
that  in  an  action  against  a  corporation  plaintiff  need  not  prove  on  the 
trial  the  existence  of  the  corporation,  unless  denied  by  verified  answer, 
relieves  the  plaintiff  of  the  necessity  of  averring,  in  positive  terms,  in 
his  affidavit,  the  incorporation  of  the  defendant.  Id.  An  affidavit  de- 
scribing a  portion  of  the  goods  by  abbreviations  of  which  no  explanation 
is  given,  is  defective  as  to  these,  and  the  writ  may  be  vacated.  National 
Co.  V.  Kaplan,  53  Ap.  Div.  96,  65  N.  Y.  Sup.  732.  An  affidavit  that  defend- 
ant is  the  owner  of  and  entitled  to  possession  of  "  all  the  dry  goods,  etc., 
and  fixtures  and  the  personal  property  of  Parsons  and  Beech  "  in  a  cer- 
tain building  described,  was  construed  to  import  that  the  goods  are  those 
commonly  known  as  belonging  to  Parsons  and  Beech,  and  therefore 
sufficient,  McCarthy  v.  Ockerman,  92  Hun,  19,  37  N.  Y.  Sup.  914.  Where 
the  affidavit  is  a  prerequisite  to  the  writ  of  replevin  the  omission  of  such 
affidavit  may  be  urged  by  one  who  is  brought  in  as  defendant  after  the  in- 
stitution of  the  action,  even  though  there  was  such  affidavit  containing 
all  the  statutory  requirements,  as  to  the  defendants  originally  named, 
Bardwell  v.  Stubbert,  17  Neb.  485,  23  N.  W.  344.  Where  the  statute  re- 
quires that  the  plaintiff,  claiming  a  special  property  in  the  goods,  must 
set  forth  the  facts  in  regard  to  such  property,  and  several  different 
things  are  specified  in  the  affidavit,  which  avers  that  the  same  "  be- 
longed to  or  were  consigned  to  said  co-partnership  of  D.  and  L.  and  by 
the  articles  of  co-partnership  on  the  dissolution  thereof  deponent  was 
and  is  entitled  to  all  the  property,"  it  was  held  insufficient,  for  not 
averring  the  facts,  so  that  the  court  might,  on  the  face  of  the  paper,  see 


PLEADING.  549 


description  of  the  property  which  the  plaintiff  seeks  to  recover, 
as  it  will  he  shown  by  the  proof.'*     And  although  amendments 


**  Taylor  r.  Riddle,  35  111.  567. 


that  the  special  property  was  made  out,  Depew  v.  Leal,  2  Abb.  Pr.  131. 
An  affidavit  that  "  the  defendants  are  now  legally  entitled  to  posses- 
sion "  was  construed  as  importing  that  plaintiff  was  so  entitled,  and 
was  held  sufficient,  Churchill  v.  Rea,  126  Mich.  175,  85  N.  W.  465;  but  in 
Clendenning  r.  Guise,  8  Wyo.  91,  55  Pac.  447,  the  same  affidavit  was 
held  fatally  defective.  Defects  in  the  affidavit  are  waived  by  answering 
to  the  merits  and  going  to  trial,  Hudelson  v.  First  National  Bank,  51 
Neb.  557,  71  X.  W.  304, — or  by  an  appearance  and  plea.  Clark  t'.  Dun- 
lap,  50  Mich.  492.  15  N.  W.  565;  Udell  v.  Slocum,  56  Ills.  Ap.  217; 
Hawes  v.  Robinson,  44  Ark.  308; — but  not  by  going  to  trial  after  mo- 
tion to  quash  overruled,  Barruel  v.  Irwin,  2  N.  M.  223.  The  court  may 
allow  an  amendment  if  the  affidavit  be  defective,  Hudelson  v.  First 
National  Bank,  51  Neb.  557,  71  N.  W.  304;— even  without  statute, 
Fisher  v.  Brown,  111  Ills.  Ap.  486;  Wilson  v.  Macklin,  7  Neb.  50;  and 
even  while  the  cause  is  pending  before  a  referee,  Tackaberry  r.  Gilmore, 
57  Neb.  450.  78  N.  W.  32.  But  the  omission  of  the  value  was  held  not 
amendable,  Barruel  v.  Irwin,  2  N.  M.  223.  The  amended  affidavit  may 
be  Bworn  to  by  a  different  agent,  Colborn  v.  Barton,  14  Ills.  Ap.  449. 
New  grounds  cannot  be  supplied  by  an  amendment,  Crum  v.  Elliston, 
33  Mo.  Ap.  591.  Omission  of  a  sufficient  description  may  be  cured  by  a 
supplemental  affidavit.  Thorn  v.  Lazarus,  39  Ap.  Div.  508,  57  N.  Y.  Sup. 
279;  and  the  affidavit  may  always  be  amended  so  as  to  state  sufficiently 
whatever  has  been  stated  informally  and  indefinitely.  Commercial  Bank 
V.  Ketcham,  46  Neb.  568,  65  N.  W.  201;  Meyer  v.  Lane.  40  Kans.  491, 
20  Pac.  258.  On  motion  to  vacate  the  order  for  possession  for  defects 
in  the  affidavit  the  order  should  go  in  the  alternative,  unless  by  a  day 
certain  a  sufficient  affidavit  is  filed,  Id.  On  discovery  of  an  over- 
valuation of  the  goods  in  his  petition  and  affidavit,  plaintiff  should  be 
permitted  to  amend  thorn  according  to  the  facts,  Mc.Manus  v.  Walters, 
62  Kans.  128,  61  Pac.  686.  An  affidavit  sworn  on  affiant's  i)clicf  may 
be  amended.  Lewis  v.  Connolly.  29  Neb.  222.  45  N.  W.  222.  The  affidavit 
may  be  amended  wherever  not  jurisdictional,  Taylor  v.  Kalamazoo 
Circuit  Judge.  100  Ml(h.  181.  58  N.  W.  835.  But  where  the  affidavit  is 
jurisdictional,  substantial  defects  are  not  amendable.  Barruel  r.  Irwin, 
2  N.  M.  223.  Although  It  Is  the  foun<latlon  of  the  action.  It  may.  where 
the  defendant  retains  the  goods,  Ix-  amended  In  tlic  Circuit  Court,  upon 
an  appeal,  ho  as  to  Increase  the  duiiiagcs  clalnuMl,  Hanf  v.  Ford.  37  Ark. 
644  An  amendment  of  the  affl<lavlt  may  be  allowed  where  the  matter 
to  be  HUpplled  Is  a  writing  referred  to  In  the  original,  and  statementa 
explanatory  of  what  appearu  therein,  stating  no  new  HubHtantlul  matter, 
Depew  V.  Leal.  2  Abb.  Pr.  131.  That  the  affldavlt  may  bo  amended  Ih 
well  settled;  an  affldavlt  asHertlng  In  general  and  In  definite  terms  the 


550  THE  LAW  OF  REPLEv'IN. 

are  sometimes  permitted  to  correct  mistake,  and  in  the  fnrtlier- 
ance  of  justice,*"  caution  in  tlic  tirst  instance  is  tlie   safe  courst;." 

"•Perkins  v.  Smith,  4  Blackf.  302;  Campbell  v.  Head,  13  111.  120; 
Parks  r.  Barkham,  1  Mich.  95;  Applewhite  v.  Allen,  8  Humph.  (Tenn.  \ 
C98;  Baker  v.  Dubois,  32  Mich.  93;  Wilson  v.  Macklin,  7  Neb.  52. 

*'  Affidavit  was  signed  by  plaintiff,  but  had  no  jurat  attached.  He 
filed  affidavit  that  he  did  swear  to  it.  Held,  the  court  might  have  per- 
mitted it  to  be  verified  nunc  pro  tunc.  Bergesh  v.  Keevil,  19  Mo.  128; 
Anon,  4  How.  (N.  Y.  Pr.)  290.  The  application  to  amend  should  be 
made  before  the  decision  upon  the  motion  to  quash  the  writ.  If  it  is 
quashed,  the  suit  is  no  longer  pending  for  any  purpose,  except  to  assess 
damages.  Campbell  v.  Head,  13  111.  126;  Perkins  v.  Smith,  4  Blackf. 
302;  Smith  v.  Emerson,  16  Ind.  355;  Eddy  v.  Beal,  34  Ind.  101. 

matters  required  by  the  statute,  is  amendable,  and  so  confers  jurisdic- 
tion, Swain  v.  Savage.  55  Neb.  687,  77  N.  W.  362. 

If  the  sheriff  fails  to  take  the  goods,  defects  in  the  affidavit  become 
immaterial;  the  action  may  be  prosecuted  for  damages,  without  an  affi- 
davit. Lamont  v.  Williams,  43  Kans.  558,  23  Pac.  592.  Where  the 
statute  requires  the  affidavit  of  the  party,  the  affidavit  of  his  attorney 
will  not  suffice,  Cromer  v.  Watson,  59  S.  C.  488,  38  S.  E.  126.  But  in  the 
absence  of  such  requirement  it  seems  the  affidavit  may  be  made  by  an 
agent.  National  Co.  v.  Kaplan,  53  Ap.  Div.  96,  65  N.  Y.  Sup.  732;— or  by 
an  agent  of  one  of  two  plaintiffs  acting  for  both,  Hudelson  v.  First 
National  Bank,  56  Neb.  247,  76  X.  W.  570.  And  where  the  statute  al- 
lows the  plaintiff  to  state  the  cause  of  detention  "  according  to  his  best 
knowledge,"  the  agent  making  the  affidavit  need  not  give  the  sources 
*of  his  information,  Sloan  v.  Implement  Co.,  25  Misc.  451,  55  N.  Y.  Sup. 
558.  A  special  agent  of  the  general  land  office  may  make  an  affidavit 
on  behalf  of  the  United  States,  and  if  upon  information  and  belief,  it 
will  be  sufficient  unless  controverted,  United  States  v.  Bryant,  111  U.  S. 
499,  28  L.  Ed.  496;  he  need  not  set  forth  the  grounds  of  his  belief.  Id. 
Affidavit  subscribed  "  J.  M.  S.  per  D.  M.  S.,"  it  appearing  from  the 
justice's  transcript  that  "  D.  M.  S."  was  the  agent*  of  the  plaintiff 
"J.  M.  S.";  was  held  sufficient,  Spencer  v.  Bell,  109  N.  C.  39,  13  S.  E. 
704; — the  affidavit  of  an  agent  need  not  show  affirmatively  that  he  has 
a  personal  knowledge,  Sloan  v.  Implement  Co.,  supra.  The  plaintiff  is 
bound  by  the  valuation  set  down  in  the  affidavit,  Lamy  v.  Remuson,  2 
N.  M.  245;  Park  v.  Robinson,  15  S.  D.  551,  91  N.  W.  344;  O'Donnell  v. 
Colby,  55  Ills.  Ap.  112;  denial  of  the  valuation  by  defendant  does  not 
change  the  rule.  Id.  Defendants  may  prove  a  greater  value,  O'Donnell 
V.  Colby,  supra.  The  affidavit  being  the  foundation  of  the  action  and 
the  clerk's  authority  to  issue  the  writ,  is  part  of  the  record,  Newell  v. 
Newell,  34  Miss.  385.  Clerical  mistakes  will  be  regarded  indulgently. 
An  affidavit  purporting  in  the  body  of  it  to  be  the  affidavit  of  Charles 
Olson  and  subscribed  by  Charley  Olson,  is  not  for  this  variance  insuffi- 
cient, Olson  V.  Peabody,  121  Wis.  675,  99  N.  W.  458.     The  affidavit  de- 


PLEADING.  55L 

The  aflBdavit,  as  has  been  shown,  is  the  foundation  of  the  suit. 
It  is  a  statement  to  the  oftieer  upon  wliich  the  luandaU'  for 
delivery  issues.  The  description  in  the  writ  and  in  the  sul)se- 
quent  proceedings  are  based  upon  and  follow  the  description  in 
the  affidavit.     It  should  therefore  be  exact  in  all  respects. 

§666.  The  declaration.  Several  counts  joined.  It  lias 
been  the  constant  practice  to  emploj^  as  many  counts  in  the  dec- 
laration as  the  pleader  deems  necessary  for  the  proper  present- 
ment of  his  case.  Counts  for  wrongful  taking  are  pro[»erly  joined 
with  counts  for  the  detention  Counts  claiming  absolute  property 
in  plaintiff  may  be  joined  with  counts  in  which  he  asserts  a  lim- 
ited interest  only.'-  IJut  the  averments  of  the  declaration  with 
respect  to  ownership  or  interest  of  the  plaintiff  in  the  pro])erty 
should  not  go  beyond  the  claim  in  the  affidavit  and  writ.*' 

§  6G7.  Rights  of  parties  under  a  single  count.  Where 
the  declaration  contains  Imt  a  single  count  for  several  articles, 
the  plaintiff  may  i-ecover  part  and  the  defendant  part,  the  .same 
as  though  there  had  been  separate  counts  ;  each  is  entitled  to 
judgment  for  the  goods  which  he  recovered,  and  to  costs  so  far 
as  he  is  .successful.**  Under  a  count  charging  wrongful  detention 
the  idaintitf  may  prove  a  wrongful  taking,  but  if  the  charge  be 
for  taking  it  is  not  supported  by  proof  of  a  detention  merely. 

§  668.  Count  in  trover  for  goods  not  delivered.  In  .some 
of  the  SUite.s,  in  addition  to  the  counts  in  reitlevin,  the  declara- 
tion may  also  contiiin  a  count  in  trover  for  such  goods  as  the 
officer  has  been  unable  to  lind  and  deliver  upon  the  writ.**  The 
count  in  trover,  however,  cann(»t  include  any  other  goods  than 
those  described  in  the  writ,  iind  which  are  shown  l)y  the  ollicer's 
return  not  to  have  been  delivered.*' 

"Dickinson  v.  Noland,  2  Kng.  (Ark.)   25;  Cox  v.  Grace,  10  Ark.  87. 

"Barnes  v.  Tannchill.  7  Blackf.  C05;  Cox  v.  Grace,  10  Ark.  87; 
Nichols  V.  Nichols.  10  Wend.  (;30. 

♦'Seymour  r.  HilllnKS,  12  Wend.  286. 

•■'Nashville  Ins.  Co.  v.  Alexander,  10  Humph.  (Tenn.)  383;  Karr  v. 
Barstow.  24  111.  580. 

"Dart  V.  Horn,  20  111.  212. 

scribed  the  wrooK-doer  as  Wimmian  H.  Peabody  and  the  writ  as 
■William  H.  Peabody.  William  H.  Peabody  appeared  and  filed 
an  affldavll  for  llie  removal  of  the  cauHc,  properly  enlltlhiK  It;  held, 
notwlfhsiaiidliiK  the  nilHnonier,  there  was  Jurisdiction  In  the  court  to 
which  the  removal  was  taken,  Id. 


552  THE  LAW  OF  REPLEVIN. 

§669.     Value  of  such  goods  usually  given  in  damages. 

The  general  pnietiee  prevailing  iii  most  of  tlio  States  permits  the 
plaint  ill"  to  recover  the  value  of  such  articles  as  are  not  delivered 
as  damages.  The  count  in  trover  is  purely  statutoiy  and  can  be 
allowed  only  when  the  statute  so  provides. 

§  670.  Form  of  the  declaration  ;  wrongful  detention. 
The  declaration  should  be  drawn  to  meet  the  proof  which  will  be 
produced  at  the  hearing.*'  The  gist  of  the  action  is  the  wrongful 
detention.  The  plaintiti  nuist  allege  tlic  right  or  title  in  himself 
as  it  exists,  the  right  to  immediate  possession,  and  the  detention 
by  the  defendant.'"*  This  allegation  of  wrongful  detention  is  es- 
sential, and  the  proof  to  sustain  it  is  equally  essential.^'  If  the 
goods  were  restored  before  suit  brought,  the  plaintiff  cannot  suc- 
ceed on  this  action.  An  allegation  that  the  defendant  was  about 
to  take  possession^"  will  not  sustain  replevin.'''  If  the  declaration 
allege  that  the  defendant  "  detained,"  it  would  imply  that  he  had 
detained  them  but  that  were  delivered  to  the  plaintiff  on  the  writ. 
Under  this  charge  he  could  not  recover  damages  subsequent  to 
return  of  the  writ.  If  the  allegation  be  "he  detains,"  this  implies 
that  the  goods  are  still  detained,  and  the  plaintiff  may  prove  and 
recover  damages  down  to  the  time  of  the  trial,  and  may  also  have 
as  judgment  for  the  value,  in  case  the  goods  are  not  delivered, 
which  he  could  not  have  under  a  charge  of  "he  detained."" 
When  the  facts  warrant  such  a  charge  it  is  best  to  allege  a 
"wrongful  taking," ^^  as  well  as  detention,  as  simplifying  the 
question  of  damages.  A  declaration  for  taking  (in  the  "ce/>i7,'") 
should  allege  a  "  wrongful  "  taking,  but  an  omission  in  this  respect 
is  cured  by  verdict."  Proof  of  a  wrongful  taking  is  not  admis- 
sible under  an  allegation  of  wrongful  detention  unless  it  be  for 
the  purpose  of  excusing  the  plaintiff  from  the  necessity  of  proving 

*' Newell  V.  Newell,  34  Miss.  385. 

*' Wilson  V.  Fuller,  9  Kan.  177;  Paul  v.  Luttrell,  1  Col.  317;  Yandle  v. 
Crane,  13  Knn.  347. 

"  Brown  v.  Holmes,  13  Kan.  482. 

""Paul  V.  Luttrell,  1  Col.  317. 

"  Herron  v.  Hughes,  25  Cal.  555. 

"''Petre  v.  Duke.  Lutw.  360;  Potter  v.  North,  I  Wm.  Saurd.  347b  n.  2; 
Fox  V.  Prickett,  5  Vroom,  (N.  J.)  13. 

"  Reynolds  v.  Lounsbury,  6  Hill,  534. 

"Reynolds  v.  Lounsbury,  6  Hill,  534.  See  Childs  v.  Hart,  7  Barb. 
370,  where  it  was  held  that  an  allegation  that  the  defendant  took  and 
unjustly  detained  would  imply  a  wrongful  taking. 


PLEADING.  55a 

a  demand  and  refusal."  Where  the  action  is  against  two  or  more 
for  a  joint  wrongful  taking  it  may,  perhaps,  be  necessary  to  show 
a  combination,  or  joint  act,  in  order  to  secure  a  recovery  against 
both,  but  it  need  not  be  alleged  in  the  declanition."* 

§  C71.  Allegation  of  wrongful  taking  ;  special  damages 
must  be  specially  alleged.  If  there  was  wrongful  taking, 
attended  with  any  acts  of  willful  wrong  or  insult,  the  declaration 
should  so  charge  ;  the  plaintiff  may  have  the  opportunity  of  en- 
hancing his  claim  for  damages  by  means  of  such  proof.'"  If  tliere 
are  any  special  causes  of  damages  the  plaintiff'  should  aver  them 
in  his  declaration.  Tliere  is  room  for  misunderstanding  on  this 
subject,  and  considerable  care  should  be  used  to  avt)id  error. 
Damages  which  are  the  natural  and  expected  result  of  the  de- 
fendant's act,  that  is,  all  sucli  damages  as  the  law  presumes  to 
have  accrued  from  the  wrongful  act,  need  not  be  specially  alleged.** 
But  the  real  or  actual  damages  sometimes  would  not  fall  under 
this  presumption,  and  in  such  cases  they  nuist  be  specially  stated, 
to  prevent  surprise.*'  Where  the  action  was  for  destroying  a 
barn  the  plaintiff  could  not  show  the  cost  of  boarding  his  horses 
elsewhere  unless  under  some  special  allegation.**  When  the  ac- 
tion was  trover  for  a  note  which  the  defendant  wrongfully  claimed 
to  hold  as  a  valid  note  of  the  plaintiff',  under  a  special  allegation 
plaintiff  could  recover  such  damages  as  the  wrongful  act  occa- 
sioned." Vicksburg  cfc  Merden  R.  R.  Co.  v.  Rar/sdale,  is  a  case 
where  this  question  is  ably  and  extensively  discus.sed.*-  Damages 
beyond  the  value  of  the  property  may  be  given  when  the  taking 
was  accompanied  by  acts  of  outrage,  if  such  damages  were  the 
natural  result  of  the  Uiking;  but  consequential  damages,  not  the 
natural  result  of  the  taking,  mu.st  be  specially  claimecl  in  the 
declaration." 

"Eldred  v.  The  Occonto  Co..  33  Wis.  141;  Newell  r.  Newell.  34  Miss. 
385;  Colt  V.  Waples.  1  Minn.  134. 

••Herron  r.  HuRhes.  25  Cal.  5»J0. 

"Newell  t".  Newell.  34  .MIsb.  385. 

"Ch.  PI.  428. 

••De  Forest  r.  Lute,  10  Johns.  122;  Nunan  r.  City  it  Co.  of  San 
Franrlwo.  38  Cal.  689;  Burrafce  v.  Melson.  48  Miss.  239. 

••Shaw  V.  Hoffman.  21  Mich.  155. 

•'  Park  V.  McDanlelH.  37  Vt.  695. 

•  V.  A  M.  R.  R.  Co.  V.  RaK«<lale.  4C  MIhh   409. 

•Schofleld  V.  Ferrers.  46  Pa.  St.  438. 


554  THE  LAW  OF  REPLEVIN. 

§  072.  The  same.  Special  requirements.  It  must  allege 
that  the  gooils  are  the  goods  and  chattels  of  tlie  plaintiff  ;  it  is  not 
sufficient  to  say  that  the  goods  were  taken  out  of  the  plaintiff's 
possession,"  or  to  charge  that  defendant  agreed  to  transfer  the 
property  to  plaintiff,*'^  or  to  simply  allege  that  the  plaintiff 
was  entitled  to  possession.*^  The  declaration  must  expressly 
allege  that  the  goods  are  the  property  of  the  plaintiff."  That  this 
is  material  will  appear  when  it  is  considered  that  the  defendant's 
plea  is  only  to  put  in  issue  the  property  in  the  plaintiff.'"'  In 
Iowa,  it  appears  that  the  right  to  possession  may  alone  be  put  in 
issue  and  determined,*''  and  the  averment  of  ownership  does  not 
require  proof  of  absolute  title  to  support  it,  but  a  right  of  present 
dominion  or  control  over  it,  is  sufficient.'"  Ownership  without  a 
right  to  immediate  possession  will  not  enable  the  party  to  make 
the  affidavit,  but  right  of  present  exclusive  possession  will,  irre- 
spective of  the  general  title."  The  evidence  of  title  must  not  be 
set  up,  but  the  fact  must  be  stated  ;  the  declaration  should  state 
positive  issuable  facts,  not  a  rehearsal  of  argument."  An  allega- 
tion of  fraud  in  a  horse  trade  is  not  sufficient,  without  showing  a 
rescission  of  the  contract;  such  a  contract  may  be  voidable,  but 
until  avoided  is  valid."  An  allegation  that  the  plaintiff  on  a  cer- 
tain day  owned  and  possessed  certain  property,  and  that  the  de- 
fendant on  that  day  took  and  wrongfully  detained  it,  is  sufficient.'* 
It  must  show  a  right  to  the  property  in  dispute  in  the  plaintiff  at 
the  time  suit  was  begun." 

§  673.     The   same.     Allegation  as  to  time  and  place.    It 

■■■^Bond  V.  Mitchell,  3  Barb.  304;  Vandeburgh  v.  Van  Valkenburgh,  8 
Barb.  217;  Johnson  v.  Neale,  6  Allen,  (Mass.)  227;  Prosser  v.  Wood- 
ward, 21  Wend.  205;  Robinson  v.  Calloway,  4  Ark.  101. 

"Bailey  v.  Troxell,  43  Ind.  433. 

^Pattison  v.  Adams,  7  Hill,  (N.  Y.)  126;  Webb  v.  Fox,  7  Durnf.  & 
East.  392. 

"'  Fontleroy  v.  Aylmer,  1  Ld.  Raym,  239. 

""  Bond.  V.  Mitchell,  3  Barb.  304. 

"'Cassel  V.  Western  Stage  Co.,  12  lowr.,  47. 

•"Johnson  v.  Carnley,  6  Seld.  (N.  Y.)  570;  Sprague  v.  Clark,  41  Vt. 
«;  Cleaves  v.  Herbert,  61  111.  127. 

"Williams  v.  West.  2  Ohio  St.  83. 

"  Fidler  v.  Delavan,  20  Wend.  57. 

"  McCoy  V.  Reck,  50  Ind.  283. 

"Adams  v.  Corriston,  7  Minn.  456;  Hurd  v.  Simonton,  10  Minn.  423. 

"Loomis  V.  Youle,  1  Minn.   175. 


PLEADING.  555 

should  state  that  the  defendant,  upon  a  time  stated,  which  must 
be  prior  to  the  issuing  of  the  writ,"*  at  a  place  which  must  be  in- 
dicated, such  as  within  a  certain  village  or  town,"  wrongfully 
took,  and  unjustly  detains;"  or,  if  the  action  be  for  detention 
only,  the  count  may  state  that  the  defendant  took,  and  "  unjustly 
detains  " ''  the  plaintitf's  goods."^ 

§  674.  The  same.  Formerly  the  plaintifl'  was  required  to 
state  the  close."'  This  was  because  distress  could  only  be  made 
upon  the  land  out  of  which  the  writ  issued."  This  rule  has  been 
so  changed  that  in  cases  other  than  for  a  distress  for  rent,  a  state- 
ment of  the  town  will  suffice.*"''  So,  when  the  declaration  stated 
that  the  property  was  taken  from  the  dwelling  of  the  plaintitf,  on 
Gay  street,  proof  that  the  taking  was  on  Gay  street,  sufficed.*** 

§  675.  Averment  of  wrongful  detention  essential.  What- 
ever may  be  the  facts  in  the  case  concerning  the  wrongful  taking, 
and  whatever  be  the  allegations  in  the  declaration  upon  that  ques- 

•*  It  is  a  good  defense  that  the  writ  issued  before  the  cause  of  action 
accrued.  Wingate  v.  Smith,  20  Me.  287.  The  date  of  the  writ  is  not 
conclusive  as  to  the  time  when  the  suit  was  begun.  Federhen  v.  Smith, 
3  Allen,  119. 

"Johnson  v.  Woolyer,  1  Stra.  507;  Muck  r.  Folkroad,  1  Browne,  (Pa.) 
60;  Gardner  v.  Humphrey,  10  Johns.  53;  Williams  r.  Welch,  5  Wend. 
290.  The  action  is  local  to  the  place  of  taking.  Sleeper  r.  Osgood,  50 
N.  H.  335.  And  it  has  been  said  a  change  of  venue  is  not  usually 
granted.     Atkinson  v.  Holcomb,  4  Cow.  45. 

•'Reynolds  v.  Lounsbury,  6  Hill,  534.  Compare  Childs  r.  Hart,  7 
Barb.    370. 

^Childs  V.  Hart,  7  Barb.  ( N.  Y.)  370;  Hurd  r.  Simonton.  10  Minn. 
423;  Adams  v.  Corriston,  7  Minn.  456;  Coit  v.  Waplcs,  1  Minn.  134; 
Nichols  V.   Nichols,  10  Wend.   <;30. 

"Vandenburgh  v.  Van  Valkenburgh.  8  Barb.  217;  Patti.son  r.  Adams, 
7  Hill,  126;  Bond  v.  Mitchell.  3  Barb.  304;  Robinson  v.  Calloway,  4  Ark. 
101.  Goods  which  the  plaintiff  was  entitled  to  the  possession  of.  sub- 
stantially Hufflcient.  Prosser  v.  Woodward.  21  Wend.  205;  Stlckncy  v. 
Smith,  5  Minn.  48G.  It  Is  sufflclont  to  allege  that  the  defendant  took 
thf;  goods  of  the  plaintiff  ami  unjustly  detains  the  same.  Childs  r. 
Hart.  7  Barb.  370;  Simmons  v.  Lyons,  3  Jones  &  Spencer.  (N.  Y.)  554; 
Bond  I'.  Mlt<  hell.  3  Barb.  304. 

•'  Gardner  v.  Humphrey.  10  Johns.  53. 

■Steph.  Niai  PriuH.  vol.  2.  p.  1333. 

"Muck  V.  Folkroad.  1  Browne.  (Pa)  fiO;  Ely  v.  Ehle.  3  Coraat.  (N. 
Y.)    510;    WllllamK   r.   WpIi  h.  5   Wend     290. 

••Faget  V.  Braylon.  2  Har.  ft  J.   (Md.)   350. 


556  THE  LAW  DF  REPLEVIN. 

tion,  it  is  iiiiponitive  that  the  declaration  contain  an  averment  of 
a  wrongful  detention  by  the  defendant  at  the  time  the  suit  was 
"begun  ;  without  this  the  phiintiff  does  not  state  a  cause  of  action.** 
This  question  was  squarely  presented  in  Colorado,  where  the 
plaintiff  declared  for  the  taking,  and  the  defendant  pleaded  non 
detinuet,  and  the  court  held  the  issue  material.^  A  very  similar 
rule  was  followed  in  Kansas."'  As  an  omission  to  charge  a  wrong- 
ful detention,  which  is  the  gist  of  the  action,  is  therefore  fatal."'' 

§676.  Evidence  of  title  not  necessary  to  be  stated.  The 
T)laintiff  is  not  at  lilierty  to  state  the  evidence  of  his  title,  but 
4iust  simply  aver  title  by  direct  and  traversable  averment."'-'  In 
support  of  this  averment,  proof  that  the  plaintiff  was  in  actual 
undisputed  possession,  claiming  to  own  the  goods,  is  sufficient  to 
entitle  him  to  judgment,  unless  a  better  title  be  shown.*"  When 
the  party  claims  and  undertakes  to  show  title,  and  shows  posses- 
sion only  as  an  incident  to  title,  evidence  upon  the  question  of 
title  must  control."^ 


"Childs  V.  Hart,  7  Barb.  370;  Kurd  v.  Simonton,  10  Minn.  423; 
Adams  v.  Corriston,  7  Minn.  456;  Colt  v.  Waples,  1  Minn.  134. 

'« Paul  V.  Luttrell,  1  Col.  318. 

"Wilson  V.  Fuller,  9  Kan.  177. 

»« Draper  v.  Ellis,  12  Iowa,  316;  Brown  v.  Holmes,  13  Kan.  482;  Le- 
Roy  V.  McConnell,  8  Kan.  273. 

*»Bond  V.  Mitchell,  3  Barb.  304;  Prosser  v.  Woodward,  21  Wend.  205; 
Robinson  v.  Calloway.  4  Ark.  101;  Alwood  v.  Ruckman,  21  111.  200; 
Pattison  v.  Adams,  7  Hill.  (N.  Y.^  126;  Vandenburgh  v.  Van  Valken- 
burgh,  8  Barb.  217;  Martin  v.  Watson,  8  Wis.  315;  Johnson  v.  Neale, 
6  Allen,  (Mass.-)  227;  Vogle  v.  Badcock,  1  Abb.  Pr.  (N.  Y.)  176.  See 
Ice  V.  Lockridge,  21  Tex.  461.  It  would  seem  that  in  Iowa,  where  a 
party  claims  under  chattel  mortgage,  that  the  declaration  should 
contain  a  copy  of  the  mortgage  and  notes.  Smith  v.  McLean,  24  Iowa, 
332. 

•«Ely  V.  Ehle,  3  Comst.  507.  When  the  plaintiff  has  the  right  to  the 
possession,  and  can  sustain  trespass,  replevin  will  lie.  See,  also,  Dun- 
ham V.  Wyckoff,  3  Wend.  280;  Stickney  v.  Smith.  5  Minn.  486;  Mar- 
shall V.  Davis,  1  Wend.  109;  Hunter  v.  Hudson  Riv.  Iron  Co.,  20  Barb. 
493;  Brockway  v.  Burnap,  12  Barb.  347;  Brockway  v.  Burnap,  16  Barb. 
309;  Hendricks  v.  Decker.  35  Barb.  298.  One  who  has  the  general  or 
special  property  in  the  goods,  accompanied  by  actual  or  constructive 
possession,  can  maintain  replevin.  Wilson  v.  Royston,  2  Ark.  315. 
Party  without  title,  except  to  right  of  possession,  may  replevy  against 
•a  wrong-doer.    Prater  v.  Frazier,  11  Ark.  249. 

"  Hatch  V.  Fowler,  28  Mich.  210. 


PLEADING.  557 

§  677.  The  same.  An  averment  of  right  of  possession 
sufficient.  The  allegation  of  ownership,  as  has  been  shown,  does 
not  require  for  its  support  proof  of  ownershij)  of  absolute  title.''* 
Where  the  complainant  alleged  that  the  plaintiffs  were  possessed 
of  the  goods,  described  "  as  of  their  own  proper  goods,"  it  Avas  said 
to  be  sufficient.*' 

§678.  The  same.  Observations.  Title  by  possession,  with- 
out other  right  to  the  property,  will,  where  the  possession  is  right- 
ful, be  sufficient  to  sustain  replevin  as  against  a  wrong-doer ;  such 
title  being  regarded  as  sufficient  to  hold  the  property  agtiinst  all 
persons  not  showing  a  better  title,  and  to  recover  it  from  one  who 
wrongfully  seizes  it."*  The  possession  must  be  a  lawful  one,  ac- 
quired without  force  or  fraud.  The  taker  up  of  an  estray,  with- 
out any  proceeding  under  the  law,  is  a  trespasser.  His  possession 
is  not  sufficient.  JJut  if  one  take  up  an  estray,  and  duly  comply 
with  the  law  in  such  cases,  his  possession  is  rightful.®* 

"See  ante,  §  96. 

"  Stickney  v.  Smith,  5  Minn.  486.  See  Prosser  v.  Woodward,  21  Wend. 
206;  Marshall  v.  Davis,  1  Wend.  109;  Hunter  v.  Hudson  Riv.  etc.,  20 
Barb.  493.  When  the  plaintiff  has  the  right  to  possession,  and  can 
sustain  trespass,  replevin  is  a  concurrent  remedy.  Dunham  v.  Wyck- 
hoff,  3  Wend.  280;  Brockway  v.  Burnap,  12  Barb.  347;  Brockway  r. 
Burnap.  16  Barb.  309;  Hendricks  v.  Decker,  35  Barb.  298;  Rucker  v. 
Donovan,  13  Kan.  251.  One  who  has  a  general  or  special  property  in 
the  goods,  accompanied  by  possession,  actual  or  constructive,  can  main- 
tain the  action.  Wilson  v.  Royston,  2  Ark.  315.  Party  without  title, 
if  entitled  to  the  possession,  may  sustain  the  action  against  a  wrong- 
doer.    Prater  v.  Frazier,  11  Ark.  249. 

"Moorman  v.  Quick,  20  Ind.  68;  Miller  v.  Jones,  Admr.,  26  Ala.  260; 
Shorao  V.  Caldwell,  21  Ala.  448;  Prater  v.  Frazier,  6  Kng.  (Ark.)  249. 
Proof  of  title  recently  before  the  taking  would  raise  a  presumption 
of  continued  ownership,  and  unless  contradicted,  would  be  sufficient. 
Smith  V.  Graves,  25  Ark.  441.  See,  also,  Tison's  Admr.  v.  Bowden,  8 
Fla.  69.  A  mere  receiptor,  who  has  received  the  goods  from  an  offlcer 
for  safekeeping,  cannot  sustain  replevin.  Warren  v.  Leland.  9  Mass. 
265;  Ludden  v.  Leavitt,  9  Mass.  104;  Dlllenback  v.  Jerome.  7  Ct>w.  294; 
Norton  v.  The  People.  8  Cow.  137.  But,  see.  Miller  v.  AdHlt,  16  Wt'ud. 
835;  Thayer  v.  Hutihlnson,  13  Vt.  504;  Mitchell  v.  Hinnian.  K  Wend. 
668.  So  of  a  sprvurit,  who  has  only  a  right  to  poHHesHlon  by  virtuf 
of  a  delivery  from  his  master,  which  the  latter  may  put  an  end  to 
at  any  time;  but  a  bailee  may  sustain  the  action.  Harris  v.  Rmltli, 
3  S.  A  R.  23;  Brownell  v.  Manchester,  1  Pick.  232;  Stanley  t'.  Gaylord. 
1  CuHh.  536;  Bond  v.  Paddelford.  13  Mass.  395;  Weld  v.  Hadlcy.  1  N. 
H.  298. 

"  BaylesH  v.  Lefalvre,  37  Mo.  122. 


558  THE  LAW  OF  REPLEVIN. 

§  679.  Where  the  complaint  follows  the  statute.  Where 
the  complaint  follows  the  form  laid  clown  in  the  code  for  the  re- 
covery of  chattels  in  specie,  it  must  be  understood  as  asserting 
such  a  title  and  claiming  such  an  interest  in  the  goods  as  may  be 
recovered  in  tliat  form  of  action.**  80  where  the  statute  pro- 
vides that  the  plea  of  non  cepit  shall  put  in  issue  the  property  in 
the  plaintiff,  as  well  as  the  taking,  the  plaintiff  may  have  a  re- 
turn of  the  goods  under  that  plea.  The  charges  in  the  declar- 
ation must  follow  the  writ.  Thus  when  the  writ  charges  an  un- 
lawful detention,  and  the  declaration  an  unlawful  taking,  there 
will  be  a  variance.®'  The  description  of  the  property  should  be  the 
same  in  the  affidavit,  writ  and  declaration ;  each  must  describe 
the  property  as  it  will  appear  in  the  proof."*  When  the  complaint 
described  only  part  of  the  property  in  the  affidavit,  and  it  appeared 
that  the  other  part  had  been  taken  from  the  defendant  on  an  at- 
tachment'' before  the  writ  could  be  served,  it  was  allowed  to  stand. 
Parties  may  litigate,  however,  concerning  property  not  included 
in  the  writ  when  they  agree  to  do  so.  Thus,  where  property  not 
embraced  in  the  writ  was  described  in  the  i^leading,  and  the 
parties  stipulated  that  the  right  thereto  should  be  determined 
in  the  suit,  it  was  regarded  as  sufficient  to  give  the  court  juris- 
diction.'"" 

§680.  Declaration  should  state  value  of  goods.  The  dec- 
laration should  state  tlie  value  of  the  goods,  thougli  the  statement 
of  the  value  of  the  whole,  and  not  of  each  article,  has  been  held 
sufficient"".  The  statement  of  value  is  but  a  form  of  pleading. 
Even  where  it  is  not  denied  in  the  pleadings,  it  is  not  admitted, 
nor  is  the  defendant  precluded  from  showing  the  true  value  to  be 
in  excess  of  the  sum  stated  by  the  plaintiff.'"^ 

»« Pickens  v.  Oliver,  29  Ala.  528.  See  Halleck  v.  Mixer,  16  Cal.  574; 
Smith  V.  Montgomery,  5  Iowa,  370. 

•'Barnes  v.  Tannehill,  7  Blackf.  604;  Nichols  v.  Nichols,  10  Wend.  630. 

"'Snedeker  v.  Quick,  6  Halst.  (N.  J.)  179;  Cronly  v.  Brown,  12  Wend. 
271;  Stevens  v.  Osman,  1  Mich.  92;  Stevison  v.  Earnest,  80  111.  517. 

"Kerrigan  v.  Ray,  10  How.  Pr.  Rep.  213.  When  the  declaration 
was  for  two  bay  horses,  and  the  proof  showed  that  the  one  was  a 
sorrel,  the  variance  was  fatal.  Taylor  v.  Riddle  35  111.  567.  See  Root 
V.  Woodruff,  6  Hill.   (N.  Y.)    418. 

"^Sanger  v.  Kinkade,  16  111.  44. 

"'Root  V.  Woodruff,  6  Hill,  (N.  Y.)  418;  Gillies  v.  Wofford.  26  Tex. 
76;   Ward  v.  Masterson,  10  Kan.   78;    Woodruff  v.  Cook,  25  Barb.  505. 

•""Chicago  &  S.  W.  Ry.  Co.  v.  N.  W.  Packet  Co.,  38  Iowa,  377;  Bailey 


PLEADING.  5bt» 

§  681.  Averment  of  demand.  The  declaration  at  common 
law  need  not  aver  a  demand.  In  Wisconsin,  it  need  not  aver  de- 
mand and  refusal.  Under  a  charge  of  wrongful  detention,  plaintiff 
may  prove  a  demand  and  refusal,  or  such  a  taking  as  will  obviate 
the  necessity  of  a  demand.""  Local  laws  will  control  this  tjues- 
tion,  and  no  general  rule  can  be  stated. 

§  68'2.  Must  claim  damages.  The  declaration  must  claim 
damages.  An  omission  in  this  respect  is  a  defect  which  has  been 
held  fatal. "*^  The  general  claim  of  damages  at  the  conclusion  of 
the  declaration  will  be  sufticient  to  entitle  the  party  to  all  such 
damages  as  are  the  natural  and  innnediate  consequence  of  the 
defendant's  acts,  of  which  the  declaration  complains.  Thus  the 
plaintiff  may  prove  any  depreciation  of  the  goods  arising  from  any 
natural  and  expected  causes,  while  they  were  in  the  defendant's 
hands.'*"  Special  damages  must  be  specially  claimed.'"*  In  an 
action  to  recover  possession  of  a  mare,  the  damage  resulting  from 
a  loss  of  flesh,  and  detention  during  the  breeding  season,  should 
be  specially  alleged.'"' 

V.  Ellis,  21  Ark.  489.  But,  see  Tulley  v.  Harloe.  35  Cal.  30G.  The 
objection  that  the  complaint  does  not  allege  the  value  is  cured  after 
verdict  for  damages  for  the  detention.  Bales  v.  Scott,  2G  Ind.  202. 
See  Hawkins  v.  Johnson,  3  Blackf.  46. 

'"Oleson  V.  Merrill,  20  Wis.  4G2.  But  in  some  States  such  aver- 
ments are  necessary.  See  Campbell  v.  Jones,  38  Cal.  507;  Hurd  v. 
Simonton,  10  Minn.  423. 

"^■^Faget  V.  Brayton,  2  H.  &  J.   (Md.)  350. 

>'*  Young  V.  Willet,  8  Bosw.   (X.  Y.)   486. 

""  Damron  v.  Roach,  4  Humph.    (Tenn.)    134. 

^"'  Stevenson  v.  Smith,  28  Cal.  102. 


5C0 


THE  LAW  OF  REPLEVIN. 


CHAPTER  XXI. 


PLEADING  BY  DEFEMDANT. 


Section. 
General  rules  ;  each  defendant 

may  plead  separately      .         .  683 
Separate  defenses      .        .         .  68-i 
Plea  of  title  ;  must  show   title 

wlien  tlie  suit  began        .         .  685 
Plea  to  title  or  riglit  of  posses- 
sion ......  686 

Plea  by  an  officer        .         .         .687 
Plea  of  property  in  defendant  .  688 
Property  in  third  person    .         .  689 
Form  of  plea  does  not  amount 
to  an  admission  of  the  taking  690 


Section. 
.  691 


The  same    .... 
The  same.     Right  of  defendant 

to  a  return  under  this  plea     .  692 
ObserA-ations  upon  this  rule      .  693 

Tlie  same 694 

The  same.  Illustrations  .  .  695 
The  traverse  .  .  .  .  696 
Exceptions  to  this  rule  .  .  697 
Replication  ....  698 

Surrender  to  a  tliird  party  by 

order  of  court  .        .        .  699 


§  683.  General  rules  ;  each  defendant  may  plead  separ- 
ately. The  action  of  replevin  is  in  the  nature  of  a  tort.  The 
defendant,  or  if  there  be  more  than  one,  each  may  set  up  as  many 
separate  defenses  as  he  judges  necessary  for  his  protection.  It 
was  said  by  the  Supreme  Court  of  Kentucky  in  1838,  that  the 
defendant  in  replevin  had  no  legal  right  to  file  more  tlianone  plea. 
Formerly  special  pleas  were  pleaded  under  leave  of  the  court,  but 
the  leave  was  always  granted  as  a  matter  of  course  ;  and  now  the 
defendant  may,  as  a  matter  of  right  under  the  general  rules  of 
practice,  plead  as  many  separate  proper  defenses  as  are  necessary.' 
Proof  of  one  sufficient  defense,  Avithout  reference  to  the  others, 
will  constitute  a  bar  to  the  action.'  Where  the  action  is  against 
two,  each  may  claim  title  to  the  property  in  hiniself,''  or  each  and 


'  Gaines  v.  Tibbs,  6  Dana,  147. 

=  Rogers  v.  Arnold,  12  Wend.  34;  Mt.  Carbon,  etc.  v.  Andrews,  53  111. 
184;  Amos  v.  Sinnott,  4  Scam.  441;  Chambers  v.  Hunt,  18  N.  J.  339. 
See  and  compare  Gaines  v.  Tibbs,  6  Dana,  (Ky.)  146;  Holton  v.  Lewis, 
1  McCord.   (S.  C.)   12;   Knowles  v.  Lord,  4  Whart.    (Pa.)   500. 

'Boyd  V.  McAdams,  16  111.  146. 


PLEADING.  661 

both  may  plead  any  proper  matter  without  reference  to  the  st;ite- 
ment  in  the  pleading  of  the  other.*  It  should  be  observed  that 
where  there  are  two  defendants,  they  must  plead  the  same  facts 
in  justification,  or  they  cannot  have  return.  For  example,  if  two 
defendants  set  up  separate  pleas  justifying  the  taking  and  demand- 
ing a  return,  and  they  should  both  be  true,  the  court  could  not 
adjudge  a  return,  though  each  might  plead  no)i  cepit  to  part  of 
the  justifying  the  taking,  as  to  other  different,  separate  i)arts,  and 
have  judgment  for  a  return  of  that  part.  But  if  a  joint  return  is 
wanted,  the  defendants  must  plead  or  avow  the  same  facts  in  justi- 
fication ;  *  but  upon  a  joint  plea  of  property  in  one  of  two  defend- 
ants, the  return  may  be  adjudged  to  botli.* 

§  684.  Separate  defenses.  It  is  not  material  that  separate 
pleas  should  be  consistent  with  each  other  ;  each  one  is  I'cgarded 
as  a  separate  defense,  in  no  way  dependent  upon  any  other,  but 
each  must  be  consistent  with  itself.  Thus  non  cepit,  which  denies 
the  taking,  may  be  pleaded  with  an  avowry  which  acknowledges 
and  justifies  the  taking;  or  non  cepit  and  plea  of  property  in  de- 
fendant, or  in  a  stranger ;  or  pleas  of  joint  property  in  tlie  plain- 
tiff and  the  defendant,  may,  any  of  them,  be  joined  with  any  or  all 
of  the  others  without  objection,  and  the  party  pleading  may  prove 
any  one  of  these  defen.ses  without  the  others.' 

§085.  Plea  of  title;  must  show  title  when  the  suit  be- 
gan. Pleas  which  .set  up  title  in  the  defeiulant,  or  whieh  rely 
upon  title  in  any  other  person  than  the  plaintiff,  must  allege  it  as 
existing  at  the  time  suit  was  begun.  A  plea  claiming  title  on  a 
certain  day  l)efore  the  conuuencement  of  the  suit  is  had."  The 
plea  must  also  contain  a  direct  and  issuable  statement  of  the  facts 
on  which  the  defendant  relies.  It  nuist  not  sti\te  the  evidence  by 
which  facts  are  pnjved.  If  the  defendant  relies  on  title,  he  must 
state  that  he  is  and  was  owner,  not  that  lie  bought  it." 

♦Martin  v.  Ray.  1  Blackf.  291. 

'Gaines  v.  Tibbs,  C  Dana.  (Ky. )   144. 

•White  V.  Lloyd,  3  Hlackf.  390.  Compare  Gotloff  v.  Henry.  14  111. 
384. 

'Shuter  v.  Page.  11  Johns.  19f.;  Simpson  r.  McFarland.  18  Pick.  432; 
Whltwell  V.  Wells,  24  Pick.  27;  Parsley  r.  Huston.  3  Blackf.  348;  Har- 
wood  r.  Smethurst,  5  Dutch,  (29  N.  J.)  195;  Edcien  v.  Thompson.  2 
Har    k  G.   (Md.  j    32, 

•  Patton   r.   Hammrr,   28   Ala.   C18. 

•.M'TaKKart    v.   Hoso,    14    Ind.    230;    Martin    x\   Watson.   8   Wis.    315; 
Robinson  f.  Calloway.  4  Ark.  101. 
36 


£62  THE  LAW  OF  REPLEVIN. 

§  68C).  Plea  to  title,  or  right  of  possession.  Where  the 
defeiuhiut  dc.sii'cs  to  |)ut  the  title  in  issue  he  iimst  do  so  by  plea 
of  propert)'  in  himself  or  in  a  stranger,  accompanied  by  a  traverse 
of  the  plaintiirs  rights  and  a  denial  of  the  taking.'"  Under  such 
pleas  the  defendant  may  prove  title  in  himself,  no  matter  how 
derived,"  or  anything  that  shows  that  at  the  time  the  suit  was 
begun  he  had  the  right  to  possession  as  against  the  plaintiff." 
Plea  of  property  in  defendant  must  be  understood  to  be  a  claim 
to  all  the  property,  or  entire  property  in  the  goods,  and  under 
such  a  plea  proof  of  property  in  the  defendant  and  another  is  not 
admissible.'*  When  the  plea  averred  that  at  the  time  of  the 
supposed  taking  the  defendant  was,  and  now  is,  the  lawful  owner, 
denying  the  plaintiff's  title,  it  was  regarded  in  substance  as  an 
admission  of  the  taking  and  detention,  with  an  avowry  of  title  in 
defendant."  But  a  plea  of  non  cepit,  as  we  shall  see,  admits  the 
property  to  be  in  the  plaintiff,'"  and  denies  the  taking  only. 

§  687.  Plea  by  an  officer.  When  an  officer  defends  the 
seizure  of  goods  by  virtue  of  process  it  need  not  be  set  out,  but 
must  be  pleaded  with  sufficient  certainty  to  show  that  it  author- 
ized the  seizure.'*  Where  the  ofiQcer  justifies  the  seizure  of  goods 
upon^\/a.,  he  must  produce  a  valid  judgment  as  well  as  execu- 
tion. The  execution  may  be  a  defense  to  the  officer  when  sued 
for  trespass,  but  if  he  claim  property  in  the  goods  as  against  a 
stranger  he  must  produce  a  valid  judgment  in  support  of  his  exe- 
cution." But  the  prior  i:)ossession  of  the  officer  under  his  writ 
may  be  sufficient  to  sustain  trover  or  trespass  against  a  stranger 
who  takes  the  goods,"*  and  upon  the  authority  of  this  case  a  plea 
setting  up  his  prior  possession  would  be  sufficient  to  entitle  the 
sheriff  to  a  return  of  the  goods  taken  on  execution  without  show- 
ing the  judgment."     If  the  process  be  mesne,  as,  for  example,  an 

'"Mackinley  v.  M'Gregor,  3  Whart.  368;  Rowland  v.  Mann,  6  Ired. 
(N.  C.)    38. 

"O'Connor  v.  Union   Line,  31   111.   236. 

"Dixon  V.  Thatcher,  14  Ark.  141;  Van  Namee  v.  Bradley,  69  111.  300. 

"Mcllvaine  v.  Holland,  5  Har.    (Del.^    10. 

"Chase  v.  Allen,  5  Allen,  509. 

"Van  Namee  v.  Bradley,  69  111.  300. 

"  Mt.  Carbon,  etc.  v.  Andrews,  53  111.  184. 

"  High  V.  Wilson,  2  Johns.  45.  See  and  compare  Holmes  v.  Nun- 
caster,   12  Johns.  395. 

"•Barker  v.  Miller,  6  Johns.  199. 

"Thayer  v.  Hutchinson,  13  Vt.  503. 


PLEADING.  503 

attochment,  a  plea  setting  up  the  writ  will  be  sufficient  witliDUt 
showing  the  grounds  upon  wliich  it  issued.*'  But  it  ought  to 
aver  a  debt  due  from  the  defendant  to  tlie  plaintiff. 

§  688.  Plea  of  property  in  defendant.  Tlie  defendant  may 
always  set  up  ownership  of  the  property  as  a  defense.  Tlie  usual 
form  of  this  plea  is  to  deny  the  plaintiff's  right  to  the  property, 
and  assert  ownersliip  and  a  right  to  possession  in  himself.  If 
the  defendant  is  successful  upon  this  issue  the  judgment  nuist  bo 
for  a  return  of  the  goods,  when  they  have  been  delivered  to  the 
plaintiff"  upon  the  writ,  and  for  damages  and  costs.-'  Tlie  action, 
however,  is  a  possessory  one,  and  either  party  may  claim  and 
show  a  right  to  the  possession  at  the  time  the  suit  was  begun. 
Upon  such  showing  he  may  recover  even  as  against  the  owner.-'* 
An  averment  and  proof  of  title,  no  matter  how  derived,  will  not 
constitute  a  defense  where  the  plaintiff  claims  and  shows  himself 
entitled  to  possession."  Where  there  are  two  defendants  and  one 
of  them  owns,  or  has  a  right  to  possession  of  the  property,  they 
may  so  plead  ;  and  a  judgment  for  a  return  will  be  sustained 
whether  the  other  has  any  right  or  not.'* 

§  689.  Property  in  third  person.  Plea  of  property  in  a 
third  person,  a  stranger  to  the  suit,  witli  a  traverse  of  plaintiff's 
right,  is  always  good."  This  plea  is  permitted  on  the  obvious 
principle  that  the  plaintiff  nuist  show  title  or  right  of  possession 
in  himself.  The  l)urden  of  proof  is  on  him,  and  the  object  of  the 
plea  is  to  show  title  out  of  the   plaintiff'.     JV^un  apif,  as  we  shall 

"McGraw  v.  Welch,  2  Col.  288.     See  Mann  v.  Perkins.  4  Blackf.  271. 

"  Rogers  t'.  Arnold.  12  Wend.  34;   Quincy  v.  Hall.  1  Pick.  359. 

°  Darter  v.  Brown.  48  Ind.  395;  Heeron  v.  Beckwith.  1  Wis.  20; 
Hunt  V.  Chambers.  1  Zab.  (21  X.  .1.)  024;  Seldner  v.  Smith.  40  Md. 
603;   Smith  v.  Williamson.  1   Har.  &  .J.   (Md.)    147. 

"Corbitt  V.  Heisey.  15  Iowa.  29C. 

•♦White  V.  Lloyd.  3  Blackf.  390;  Gotloff  v.  Henry.  14  111.  385;  Wald- 
man  v.   Broder,  10  Cal.   379. 

^'Hall  V.  Henline.  9  Ind.  25C;  Parker  t'.  Mellor.  1  Ld.  Uayni.  217: 
Johnson  r.  CarnU-y.  C  Seld.  (N.  V.)  576;  McCurry  v.  Hooper,  12  Ala. 
823;  Ingraham  t'.  Hammond,  1  Hill.  353;  Harrison  r.  M'lntosh,  1  John. 
380;  ProHHor  v.  Woodward,  21  Wend.  209;  Scliormcrhorn  f.  Van  ValUcn- 
biirKh,  11  Johns.  529;  Martin  v.  Ray,  1  Hlackf.  (Ind.)  292;  Noblo  v. 
Epperly.  6  Ind.  415;  Schulenberx  r.  Harriman.  L'l  Wall.  (I'.  S.)  44; 
Shiiter  V.  PaRP.  11  John.  196;  Marsh  v.  Pier,  4  Rawlo.  283;  Cullum  v. 
Bcvans,  6  Har.  &  J.  (.Md.)  469;  Thompson  v.  RwiMlser.  43  Ind.  312; 
LoomlH  V.  Youlc.  1  Minn.  175;  Scott  v.  Hughes.  9  B.  Mou.  (Ky.)   104. 


564  THE  LAW  0I-'  REPLEVIN. 

see,  admits  the  title  to  be  in  the  plaintiff ;  it  simply  denies  the 
taking,  and  to  enable  the  defendant  to  contest  the  plaintiff's  title, 
and  ask  a  return  of  the  goods,  he  nuist  plead  proix'rty  in  himself 
or  some  other  person,  and  deny  the  plaintiff's  right  as  well  to 
property  as  to  possession.  The  traverse  or  denial  of  the  plaintift''s 
right  is  the  material  part  of  the  plea;  the  allegation  of  title  in 
another  is  merely  inducement.'* 

§  690.  Form  of  the  plea  ;  does  not  admit  the  taking. 
This  plea  must  aver  the  goods  to  be  the  i)ro[)crty  of  somt;  third 
person,  who  must  be  named ;  "  or,  perhaps  it  may  be  in  a  ficti- . 
tious  person,-"  and  should  contain  traverse  or  denial  of  the  plain- 
tiffs right,  which  is  the  material  part  of  the  plea.  The  plaintiff 
\\on\d  not  be  permitted  to  reply,  denying  the  property  in  such 
third  person,  as  that  would  present  an  immaterial  issue.  This 
plea,  even  alone,  does  not  amount  to  an  admission  of  the  taking, 
nor  does  it  shift  the  burden  of  proof  to  the  defendant.  It  denies 
that  the  plaintiff  had  the  right  to  deliverance,  and  upon  this  issue 
the  burden  of  proof  is  upon  the  plaintiff".^"  But  if  the  plaintiff 
show,  under  such  plea,  that  the  defendant  had  possession  of  his 
property,  the  burden  of  proof  would  be  shifted  on  the  defendant 
to  show  how  he  came  by  it.'"  If  the  plea  merely  assert  title  in  a 
stranger,  without  a  traverse  of  the  plaintiff's  right,  the  burden  of 
proof  would  be  on  the  defendant  to  show  the  title  as  pleaded. 

§  ()91.  The  same.  Where  the  defendant  pleads  property  in 
a  tliird  person  named,  he  cannot,  upon  the  trial,  be  permitted  to 
show  title  in  another  person  not  named.  He  has  no  right  to  mis- 
lead the  plaintiff  by  pleading  one  state  of  facts  and  attempting  to 
prove  another.^'  It  is  not  necessary  that  such  third  person  should 
be  a  party  to  the  suit ;  ^^  and  neither  the  plea  nor  the  finding 
thereon  binds  the  third  party,  unless  he  is  in  some  way  connected 
with  the  party  filing  it." 

=«  Rogers  v.  Arnold,  12  Wend.  33;  Chambers  v.  Hunt,  18  N.  J.  L.  339; 
Chambers  v.  Hunt,  22  N.  J.  L.  553;   Van  Namee  v.  Bradley,  69  111.  300. 

="  Anstice  v.  Holmes,  3  Denio,  244. 

"Anderson  v.  Dunn,  19  Ark.  650. 

"Crosse  v.  Bilson,  2  Ld.  Raym.  1016;  Marsh  v.  Pier,  4  Rawle,  282; 
MacKinley  v.  M'Gregor,  3  Whart.  368;  Gentry  v.  Bargis,  6  Blackf.  262; 
Johnson  v.  Plowman,  49  Barb.  472. 

'"Morris  v.  Danielson,  3  Hill,  168. 

='  McClung  V.  Bergfeld,  4  Minn.  148. 

"  Thompson  v.  Sweetser,  43  Ind.  312. 

"Edwards  v.  McCurdy,  13  111.  496. 


PLEADING.  565 

§  692.  The  same.  Right  of  defendant  to  a  return  under 
this  plea.  Upon  the  sutRciency  of  this  plea  as  a  defense  no 
question  has  ever  been  raised.  But  as  to  whether  proof  of  prop- 
erty in  a  third  person  in  no  way  connected  with  the  suit  will  en- 
title the  defendant  to  judgment  for  a  return  of  the  goods,  without 
connecting  himself  with  the  title  of  such  third  person,  is  a  ques- 
tion upon  which  the  cases  differ.  Many  of  them  hold  that  the 
defendant  may  plead  property  in  a  stranger  to  the  suit,  and  upon 
this  plea  may  have  return  of  the  goods  without  connecting  him- 
self with  the  title  of  such  stranger.  The  defendant,  it  is  said, 
ought  to  have  return,  because  the  possession  was  illegally  taken 
from  him."  Upon  a  plea  in  abatement  sustained,  the  action  is 
suspended  for.  the  time.  A  plea  in  bar,  if  successful,  destroys  the 
action."  It  must  also  be  observed  that  upon  judgment  on  a  plea 
in  abatement  that  the  writ  be  quashed,  the  return  of  the  goods 
does  not  necessarily  follow.  Return,  in  fact,  is  not  ordered  unless 
the  defendant  show  that  the  goods  were  delivered  to  the  plaintiff 
on  the  writ,  and  that  they  ought  to  be  returned  ;  and  by  the  old 
authorities  it  .seems  that  there  is  no  reason  why  the  defendant 
cannot  assert  title  in  himself  and  ask  return  in  a  plea  in  abate- 
ment.^ 

"Parker  v.  Mellor,  1  Ld.  Raym.  217;  Salkold  v.  Skelton,  Cro.  .lac. 
519;  Wildman  v.  North,  2  Lev.  92;  Pressgrove  v.  Saunders,  6  Mod. 
81;  Pressgrave  v.  Saunders,  2  Ld.  Raym.  984;  Crosse  v.  Bilson,  2  Ld. 
Raym.  1016.  And  this  rule  has  been  followed  in  a  number  of  modern 
cases.  Harrison  v.  Mcintosh,  1  John.  384;  Walpole  v.  Smith,  4  Blackf. 
305.  "  It  is  not  necessary  for  the  defendant,  under  this  plea,  to  con- 
nect himself  with  the  title  of  the  stranger.  It  is  enough  for  him  that 
the  plaintiff  does  not  own  it."  Anderson  v.  Talcott,  1  Gilni.  371;  In- 
graham  f.  Hammond,  1  Hill.  353.  Consult  Constantlne  v.  Foster,  T>7 
111.  38;  Gotloff  V.  Henry,  14  111.  384;  Hunt  v.  Chambers.  1  Zab.  627; 
Noble  V.  Epperly,  6  Ind.  414;  Prosser  v.  Woodward,  21  Wend.  205; 
.lohnson  v.  Neale,  6  Allen,  228;  Selbert  v.  M'Henry,  6  Watts.  303. 
"  When  any  part  of  the  goods  belong  to  a  third  pfrson.  the  defendant  is 
entitled  to  a  verdict  for  those  goods  or  their  value."  Morss  v.  Stone, 
5  Barb.  51C;  Snow  r.  Roy,  22  Wend.  C02;  Klnehout  i'.  Grain.  4  Hill. 
537;  Seymour  v.  Billings,  12  Wend.  285;  WllllamB  v.  Becdc.  15  N.  H. 
485.  Property  In  defendant,  or  in  a  third  person,  may  be  pleaded  In 
bar  or  in  abatement.  Boles  v.  WItherall.  7  Me.  162.  Wilson  v.  Gray,  8 
Watts.  (Pa.)  35,  and  rases  riled.  But  the  plcii  in  bar.  r.nd  a  defenso 
under  It,   Is   the  more  common. 

"  Wallis  V.  Savll.  Liitw.  16. 

••Gilbert  on  Replevin,  126,  citing  many  old  cases. 


566  THE  LAW  OF  REPLEVIN. 

§  C93.  Observations  upon  this  rule.  Hut  tlii.s  cannot  be 
said  to  be  a  general  rule.  A  mere  tresi)asser,  or  one  who  has 
obtained  possession  of  goods  by  his  own  wrongful  act,  cannot  set 
up  the  title  of  a  stranger,  and  thereby  obtain  a  return  of  goods 
wrongfully  taken,  without  in  some  way  connecting  himself  with 
the  title  of  the  stranger." 

§  694.  The  same.  This  point  was  clearly  stated  by  Schol- 
FiELD,  J.,  in  a  recent  Illinois  case :  "  The  property,  whether  in 
the  defendant  or  a  third  person,  sufficient  to  sustain  a  defense, 
must  be  such  as  goes  to  destroy  the  interest  of  the  plaintiff  in  the 
property  in  dispute,  and  which,  if  existing,  would  sustain  the 
action  ;  or,  in  other  words,  such  as  would  defeat  an  action  of  tres- 
pass if  brought  for  a  wrongful  taking,  or  trover  if  brought  for  a 
wrongful  detention."  As  against  a  wrong-doer  prior  rightful 
possession  is  sutficient  to  enable  the  plaintiff  to  maintain  the  ac- 
tion. If  the  right  of  the  plaintiff  is  better  than  that  of  the  de- 
fendant, whatever  it  may  be  with  regard  to  the  rest  of  the  world, 
he  will  recover.  If  the  action  can  be  sustained  by  one  whose  title 
rests  in  the  simple  possession  of  the  goods,  unquestionably  in 
similar  cases  the  same  title  would  justify  a  judgment  in  his  favor 
for  a  return  of  the  goods,  where  he  occupied  the  position  of  de- 
fendant.^* This  decision  is  abundantly  sustained  by  the  author- 
ities. It  follows  the  leading  cases  wherever  this  question  has 
raised,'®  and  is  in  harmony  with  the  rule  in  trover,  which  is  in 
this  respect  substantialh'  like  replevin  ;  the  defendant,  a  wrong- 
doer, cannot  set  up  title  in  a  third  person  to  defeat  the  plaintiff's 
suit,  without  connecting  his  title  with  that  of  the  stranger.*" 

'•Duncan  v.  Spear,  11  Wend.  54;  Rogers  v.  Arnold,  12  Wend.  30; 
Brown  v.  Webster,  4  N.  H.  500;  Reed  v.  Reed,  13  Iowa,  5;  Dozier  v. 
Joyce,  8  Porter,  (Ala.)  303;  Stowell  v.  Otis,  71  N.  Y.  36;  Gerber  v. 
Monie,  56  Barb.  652;  Hoyt  v.  Van  Alstyne,  15  Barb.  568.  See  Wilker- 
son  V.  McDougal,  48  Ala.  518. 

^'  Van  Namee  v.  Bradley,  69  111.  300,  closely  following  Presgrave  v. 
Saunders,  1  Salk.  5.  Compare,  on  this  point,  Chambers  v.  Hunt,  22  N. 
J.  L.  553. 

^Rogers  v.  Arnold,  12  Wend.  37;  Duncan  v.  Spear,  11  Wend.  54; 
Miller  v.  Jones,  Admr.  26  Ala.  248;  Gerber  v.  Monie,  56  Barb.  652; 
Hoyt  V.  Van  Alstyne,  15  Barb.  568;  Stowell  v.  Otis,  71  N.  Y.  36. 

"Dozier  v.  Joyce,  8  Porter,  (Ala.)  315;  O'Brien  v.  Hilburn,  22  Tex. 
624;  Schermerhorn  v.  Van  Valkenburgh,  11  Johns.  529;  Rotan  v. 
Fletcher,  15  Johns.  208.  But  see  Hurst  v.  Cook,  19  Wend.  463,  ex- 
.amining  all  the  early  authorities,  and  holding  that  in  trover  plea  of 
property  in  third  person  is  bad. 


PLEADING.  567 

§  695.  The  same.  Illustrations.  In  detinue,  wlien  the 
plaintiff  has  shown  a  prior  possession  and  mule  out  a  prima  fai-ic 
case,  the  defentlant  cannot  defeat  his  recovery  by  simply  sliowing 
an  outstanding  title  in  a  stranger,  with  which  he  in  no  way  con- 
nects himself."  In  some  of  the  cases  cited,  the  right  to  po.ssession 
was  alone  put  in  issue.  "When  the  plaintiff"  claims  possession, 
and  the  right  of  possession  is  alone  put  in  issue,  the  defendant 
cannot  show  title  in  a  third  party,  because  that  may  be  consistent 
with  the  plaintiff's  right  of  possession.  A  stranger  may  have 
title,  while  the  plaintiff  may  have  the  right  to  present  possession." 
The  defendant  cannot  set  up  title  in  a  third  per.son  who  is  shown 
to  acquiesce  in  the  plaintiff's  claim." 

§  006.  The  traverse.  When  the  defiMidant  pleads  property 
in  himself,  or  in  a  third  person,  the  plea  should  contain  a  "  tra- 
verse," as  it  is  called.**  This  is  simjjly  a  denial  of  the  plaint itt''s 
right.  It  puts  him  upon  proof  of  his  title;  to  sustain  the  issues 
tendered  by  this  plea  he  is  bound  to  prove  his  rights  as  alleged. 
The  traverse,  in  fact,  is  the  material  part  of  the  plea."  This  plea 
should  also  contain  a  statement  that  the  property  is  in  the  de- 
fendant, or  in  some  third  per.son  named ;  this  latter  averment  is 
regarded  only  as  an  inducement  to  the  main  issue,  which  is  the 
denial  of  the  plaintift"s  right.**  It  is  the  denial  of  his  right  that 
the  plaintiff  must  answer.  lie  cannot  be  permitted  to  waive  the 
denial  of  his  own  rights,  contained  in  the  pica,  and  content  him- 
self with  a  denial  of  the  rights  asserted  liy  the  defendant." 

"Sims  V.  Boynton,  32  Ala.  3.j4;  Lowremore  v.  Berry.  19  Ala.  130; 
McGuire  v.  Shelby,  20  Ala.  450;   Harkcr  v.  Dement,  9  Gill.    (Md.)   7. 

"Reese  v.  Harris,  27  Ala.  301;  Corbitt  i'.  Helsey,  15  Iowa,  29G. 

"  Frost  V.  Mott,  34  N.  Y.   233. 

"Rogers  v.  Arnold.  12  Wend.  34;  Anstlce  v.  Holmes.  3  Dcnlo,  244; 
Pringle  v.  Phillips,  1  Sandf.  292;  Prosser  v.  Woodwaid,  21  Wend.  208; 
Hunt  V.  Chambers.  1  Zab.  (21  N.  .1.)  025;  Robinson  i'.  Calloway.  4 
Ark.    101. 

*•  Anderson  v.  Talcott,  1  Glim,  371;  .Johnson  v.  Nealc,  f.  Allen.  (Mass.) 
228;  Selbert  v.  M(  Honry,  f.  Watts.  ( Pa. »  303;  Hunt  v.  CMiamlxT.s.  1  Zab. 
(21  N.  J.)  C27;  Noble  t.  Epperly,  G  Iiid  lit;  Di.klnson  v.  Lovdl,  35 
N.  H.  9. 

••Gotloff  V.  Henry,  14  111.  3K4;  Anderson  v.  Talcott,  1  Glim.  371; 
Chandler  v.  Lincoln,  52  III.  74;  Landers  r.  George.  \n  Ind.  If.i);  Parsloy 
V.  Huston,  3  niackf.  348;  Gentry  v.  HarglH,  r,  nia<  Uf  2('i2;  Robinson  f. 
Calloway,  4  Ark.  lOl;  Hunt  »•.  IJi-nnott.  4  G.  Grcrne.  (In.)  513. 

"Robinson   v.  Calloway,   4    Ark.   101;    C'onHtantln«<   v.   Foator,   57    III. 


568  THE  LAW  OF  REPLEVIN. 

§  697.  Exceptions  to  this  rule.  Tlu-ie  are  cases,  however, 
which  seem  to  hold  that  a  pica  (K'liying  the  plaintiff's  riglit  may 
be  good  without  a  traverse.**  Where  a  i)lea  contains  simply  an 
aflfirmative  allegation  that  the  pro{)crty  is  the  property  of  the 
defendant,  or  a  stranger  to  the  suit,  without  a  denial  of  the  i)lain- 
tiff's  title,  the  burden  of  proof  will  he  uinm  the  defendant,  who 
asserts  the  title;*'  and  this  is  in  harmony  with  the  general  rule 
of  pleading  in  other  cases.  The  burden  of  i)roof  is  on  him  who 
asserts  or  holds  the  affirmative  of  the  issue,  and  if  the  defendant 
choose  to  assert  title  in  himself,  without  denial  of  plaintiff's  right, 
he  may  do  so,  at  the  risk  of  making  out  the  title  he  asserts.''" 

§  698.  Replication.  In  a  replication  to  plea  of  property  in 
stranger,  the  plaintiff  must  simply  rcaflfirm  his  own  title;  he  is 
under  no  obligation  to  notice  the  induciunent  or  introductory  part 
of  the  plea,  or  the  claim  that  the  property  belongs  to  the  defend- 
ant.*' Replication  that  the  goods  were  delivered  to  plaintiff  by 
A.  for  safe  keeping,  without  alleging  property  in  A.,  is  not  suffi- 
cient. The  deposit  may  have  been  by  one  who  had  no  authority 
or  title." 

§  699.  Surrender  to  a  third  party  by  order  of  court. 
When,  during  the  pendency  of  the  action,  and  before  trial,  the 
defendant  has  been  legally  required  to  deliver  the  property  in  dis- 
pute to  a  third  person,  who  is  the  owner  as  against  both  the  parties 
to  the  suit,  such  delivery  may  be  pleaded,  and  will  constitute  a 
good  defense  to  the  replevin  suit.  Thus,  when  the  sheriff  was 
sued,  by  an  assignee  of  the  debtor,  for  goods  which  he  had  at- 
tached, he  filed  answer  that  the  assignment  was  made  to  hinder, 
delay  and  defraud  creditors;  that  the  debtor  had  been  adjudged 
a  bankrupt,  and  that  the  assignee  in  bankruptcy  had  demanded 
and  taken  the  goods,  such  answer  was  regarded  a  sufficient  defense 

36;  Chambers  v.  Hunt,  2  Zab.  (22  N.  J.)  552;  Same  v.  Same,  18  N.  J. 
L.  339;  Brown  v.  Bissett,  1  Zab.  267;  Reynolds  v.  McCormick,  62  HI. 
415;    Richardson   v.    Smith.   29   Cal.   529. 

*•*  Johnson  v.  Neale,  6  Allen.  228;  Whitwell  v.  Wells,  24  Pick.  25; 
Loveday  v.  Mitchell,  Comyns,  248. 

"Chandler  v.  Lincoln,  52  111.  76;  Harwood  v.  Smethurst,  5  Dutch. 
(N.  J.)    196. 

"As  to  evidence  to  show  property  in  a  third  person,  see  Edmunds  v. 
Leavitt,  21  N.  H.  198. 

"Chambers  v.  Hunt,  2  Zab.  (22  N.  J.  L.)  552. 

"  Harrison  v.  M'Intosh,  1  Johns.  384. 


PLEADING.  5C9 

to  the  replevin  suit."  This  rule  is  based  upon  the  idea  that,  pend- 
ing the  suit,  the  property  is  in  the  custody  of  tlie  law,  and  the 
court  has  a  right  to  make  such  disposal  of  it  as  it  sees  proper. 

"Bolander  v.  Gentry,  36  Cal.  109;  Hunt  r.  Robinson,  11  Cal.  262; 
Cole  V.  Conally,  16  Ala.  274;  O'Connor  v.  Blake,  29  Cal.  313. 

Note  XXXI.  Pleadings.  Declaration  or  Coinplaint.  Generally. — 
Whether  the  goods  were  unlawfully  taken  or  unlawfully  detained,  the 
declaration  may  be  the  same,  Riley  v.  Littlefleld,  84  Mich.  22,  27  N.  W. 
576.  It  is  enough  to  aver  plaintiff's  interest  and  right  to  possession,  and 
the  wrongful  detention;  it  is  not  necessary  to  aver  that  the  goods  are 
exempt,  though  this  is  the  ground  of  the  action,  Eikenbary  i\  Clifford, 
34  Neb.  607.  52  N.  W.  377.  Need  not  allege  that  the  goods  were  not 
taken  under  execution  against  plaintiff,  Daniels  v.  Cole,  21  Neb.  156, 
31  N.  W.  491;  but  if  the  complaint  make  this  averment  and  the  fact 
is  otherwise,  the  plaintiff  will  not  be  heard  afterwards  to  say  that 
the  goods  are  exempt,  Eikenbary  v.  Clifford,  supra.  Plaintiff  relying 
upon  a  mortgage  put  out  by  defendant,  is  not  required  to  set  out 
facts  which  estop  defendant  from  denying  its  genuineness.  First  Na- 
tional Bank  r.  Ragsdale,  158  Mo.  668,  59  S.  W.  987.  Need  not  aver 
that  the  goods  were  not  taken  for  any  tax,  assessment  or  fine,  Payne  r. 
June,  92  Ind.  252.  Under  an  averment  of  ownership  generally  the 
intervenor  may  prove  that  the  contract  under  which  plaintiff  claims, 
was  obtained  by  fraud,  Woodbridge  v.  DeWitt,  51  Neb.  98.  70  N.  W. 
508.  Partners,  plaintiffs,  need  not  aver  compliance  with  the  statute 
requiring  an  affidavit  of  the  partnership  names  to  he  filed  in  a  public 
office,  even  though  the  statute  provide  that  those  included  in  its  require- 
ments "  shall  not  maintain  any  suit "  without  compliance,  Swope  v. 
Burnham,  6  Okla.  73G,  52  Par.  924.  A  married  woman  need  not  aver 
her  coverture;  if  the  fact  appear  at  the  trial  she  may  prove  that  the 
goods  came  to  her  as  a  gift,  and  are  her  separate  property,  Shumway  v. 
Leakey,  67  Calif.  458,  8  Pac.  12;  but  if  she  aver  her  coverture  she  must 
further  aver  all  the  facts  necessary  to  entitle  her  to  maintain  the 
action.  Id.  An  infant  suing  by  next  friend  need  not  aver  leave  to 
sue  in  this  manner,  Wilkins  v.  Wilson,  1  Marv.  404,  41  Atl.  7<'>.  Con- 
servator suing  to  recover  the  goods  of  his  ward  need  not  aver  a  Judicial 
declaration  of  insanity,  Hoke  v.  Applegate,  92  Ind.  570;  but  seokInK 
to  disaffirm  an  alleged  gift  by  the  ward,  under  which  the  defend- 
ant claims,  he  must  aver  that  the  lunatic  has  been  Judicially  declared 
such,  that  plaintiff  wa.s  duly  appointed,  and  that  the  disability  continues. 
Id.  Complaint  for  a  promis.sory  note  payable  to  a  third  person  need  not 
aver  an  assignment  to  the  plalntllT.  nor  give  the  date  nor  the  place  of 
payment  nor  the  rate  of  IntercHt,  Illnhnoto  v.  Wblto.  f,7  Ind.  596.  Th© 
complaint  niuHt  show  expr'SHly  who  Itf  plulntlfT  and  who  Ih  defendant, 
Wllhlle  V.  WilllaniK,  41  KanH.  288.  21  Pac.  unO;  nniHt  give  tin-  Indi- 
vidual naraes  of  the  partnerHhlp,  or  aHHoclutlon   HiiinK.   Ilcatti   v.   Mor- 


570  THE  LAW  OF  REPLEVIN. 

gan,  117  N.  C.  505,  23  S.  E.  489.  The  designation  of  parties  by  initials 
is  irregular  but  amendable,  Stever  v.  Brown,  119  Mich.  196,  77  N.  W. 
704.  An  averment  that  the  plaintiff  is  executor  of  a  deceased  person, 
named,  and  as  such  is  entitled  to  the  goods  with  the  addition  of  the 
word  executor  after  plaintiff's  name,  does  not  present  in  issuable 
form  the  plaintiff's  representative  capacity,  Taylor  v.  Jackson,  35 
Misc.  300,  71  N.  Y.  Sup.  745. 

Must  Aver  Title,  and  Hoio. — In  most  jurisdictions  a  general  aver- 
ment of  ownership  entitles  the  plaintiff  to  show  any  right  of  property, 
general  or  special,  which  confers  upon  him  the  right  of  possession; 
Buck  V.  Young.  1  Ind.  Ap.  558,  27  N.  E.  1106;  Cumbey  v.  Lovett,  76 
Minn.  227,  79  N.  W.  99;  Goodman  v.  Sampliner,  23  Ind.  Ap.  72,  54  N.  E. 
523;  Tucker  v.  Parks,  7  Colo.  62,  1  Pac.  427;  and  it  is  said  this  is  the  bet- 
ter form  of  pleading,  Summerville  v.  Stockton  Co.,  142  Calif.  529,  76 
Pac.  243,  e.  g.,  a  chattel  mortgage  and  breach  of  its  conditions.  Miller 
V.  Adamson,  45  Minn.  99,  47  N.  W.  452;  Crocker  v.  Burns,  13  Colo.  Ap. 
54,  56  Pac.  199;  that  the  goods  were  obtained  by  fraud,  Desbecker  v.  Mc- 
Farline,  42  Ap.  Div.  455;  59  N.  Y.  Sup.  439,  affirmed  166  N.  Y.  625,  60  N. 
E.  1110;  Pekin  Plow  Co.  v.  Wilson,  66  Neb.  115,  92  N.  W.  170;  Salisbury 
V.  Barton,  63  Kans.  552,  66  Pac.  618;  Samuels  v.  Burnham,  10  Kans.  Ap. 
574,  61  Pac.  755;  Benesch  v.  Waggner,  12  Colo.  534,  21  Pac.  706;  Amer  v. 
Hightower,  70  Calif.  440,  11  Pac.  697;  or  that  the  person  under  whom  de- 
fendant justifies  obtained  them  by  fraud  upon  the  plaintiff.  Phoenix  Iron 
Works  V.  McEvony,  47  Neb.  228,  66  N.  \Y.  290;  that  plaintiff  is  entitled  to 
the  goods  by  virtue  of  an  assignment  for  creditors,  Krug  v.  McGilliard, 
76  Ind.  28;  that  a  bill  of  sale  by  plaintiff  to  defendant  was  never  de- 
livered, and  that  defendant  obtained  possession  by  force  and  wrong, 
Grinnell  v.  Young,  41  Minn.  186,  42  N.  W.  929;  that  a  lien  under  which 
the  defendant  claims  has  been  extinguished  by  a  tender  of  the  amount, 
Jones  V.  Rahilly,  16  Minn.  320;  that  the  plaintiff  holds  a  bill  of  lading 
for  the  goods  by  assignment  of  the  consignee,  as  security  for  moneys 
advanced,  Schmidt  v.  First  National  Bank,  10  Colo.  Ap.  261,  50  Pac. 
733;  that  plaintiff  is  mortgagee  in  possession,  Falk  v.  DeCou,  8  Kans. 
Ap.  705,  61  Pac.  760;  that  goods  taken  under  execution  are  exempt, 
Carlson  v.  Small,  32  Minn.  439,  21  N.  W.  480;  that  plaintiff  is  the  assignee 
of  a  contract  of  conditional  sale,  the  conditions  of  which  have  been 
violated,  Myres  v.  Yaple,  60  Mich.  339,  27  N.  W.  536.  And  the  plain- 
tiff need  not  set  up  how  he  derives  title,  nor  anticipate  and  avoid  an 
attack  upon  his  title,  Furman  v.  Tenny,  28  Minn.  77,  9  N.  W.  172; 
Need  not  set  up  the  claims  and  pretenses  of  defendant,  Bjurgwald  v. 
iDonelson,  2  Kans.  Ap.  301,  43  Pac.  100.  Averring  a  particular  title  he 
may  prove  different  title.  Deacon  v.  Powers,  57  Ind.  489;  and  averring 
a  chattel  mortgage  he  may  prove  this,  though  the  complaint  also  alleges 
absolute  ownership,  Darnall  v.  Bennett,  98  la.  410,  07  N.  W.  273;  he  may 
set  out  his  title  specially,  Fay  v.  Burditt,  81  Ind.  433,  42  Am.  Rep.  142. 
Where  the  complaint  contains  the  general  allegation  of  title  followed  by 
a  specific  statement  of  facts  constituting  the  title,  the  latter  must  con- 


PLEADING.  571 

trol;  and  if  such  specific  statement  shows  that  plaintiff  in  fact  has  no 
title,  the  complaint  is  bad,  Boesker  v.  Pickett,  81  Ind.  554.  If  the 
complaint  attempts  to  set  up  and  rely  upon  only  a  special  ownership 
by  virtue  of  a  chattel  mortgage,  not  averring  by  whom  or  to  whom  it 
was  executed,  it  fails  to  show  a  cause  of  action,  Elliott  r.  First  National 
Bank,  30  Colo.  279,  70  Pac.  421.  In  such  case  the  complaint  must  set 
forth  the  terms  of  the  mortgage,  and  show  that  according  to  its  terms 
the  plaintiff  at  the  institution  of  his  suit  was  entitled  to  possession, 
Johnson  v.  Simpson,  77  Ind.  413.  Where  plaintiff  relies  upon  a  mort- 
gage which  recites  a  prior  mortgage  he  need  not  aver  satisfaction  or 
release  of  such  prior  mortgage,  Payne  r.  McCormick  Co.,  11  Okla.  318, 
66  Pac.  287.  And  showing  a  bare  right  to  possession  the  complaint  is 
bad,  Dillard  r.  McClure,  G4  Mo.  Ap.  488. 

And  if  the  complaint  allege  ownership  generally,  the  plaintiff  cannot 
show  a  mere  lien;  by  asserting  title,  plaintiff  waives  his  lien,  Hudson 
r.  Swan,  83  N.  Y.  552;  Scofield  v.  National  Elevator  Co.,  64  Minn.  527. 
€7  N.  W.  645.  But  in  Nebraska,  plaintiff  declaring  as  general  owner, 
cannot  prove  a  special  ownership,  Randall  r.  Persons,  42  Neb.  008, 
60  N.  W.  898;  Strahle  v.  First  National  Bank,  47  Neb.  319,  66  N.  W. 
413;  Robinson  v.  Kilpatrick  Co.,  50  Neb.  795,  70  N.  W.  378;  and  the 
complaint  must  show  all  the  facts  constituting  the  special  title,  Strahle 
V.  First  National  Bank,  supra.  GrifRng  v.  Curtis,  50  Neb.  334,  G9  N.  W. 
968.  Merely  averring  that  plaintiff  "has  a  special  ownership"  in  the 
goods,  is  not  sufficient.  Id.  Suckstorf  v.  Butterfield,  54  Neb.  757.  74  N.  W. 
1076;  Paxton  v.  Learn,  55  Neb.  459,  75  N.W.  1096.  An  averment  that 
the  plaintiff  is  entitled  to  possession  "  by  reason  of  a  chattel  mort- 
gage executed  by  one  Baldwin,"  without  any  facts  showing  breach 
of  conditions  of  the  mortgage,  or  how  plaintiff  is  entitled  to  possession, 
will  not.  even  after  verdict,  suffice.  Norcross  v.  Baldwin,  50  Neb.  885, 
70  N.  W.  511;  and  so  in  Washington.  Kerron  v.  Northern  Pac.  Co..  1 
Wash.  241,  24  Pac.  445;  and  In  Kansas,  Kcnnett  v.  Peters,  54  Kans. 
119.  37  Pac.  999;  and  Kentucky,  Cooper  v.  McKce,  Ky.,  89  S.  W.  203; 
and  Arkansas,  Perry  Co.  Bank  v.  Rankin,  73  Ark.  589,  84  S.  W.  725.  86  S. 
W.  279.  And  where  the  plaintiff  counts  expressly  upon  a  lien  or  special 
property,  he  must  show  the  amount  for  which  the  lion  Is  as-'prtol.  Swope 
V.  Burnham.  6  Okla.  736.  52  Pac.  924.  But  ev«'n  under  the  rule  in  Ne- 
braska, whirh  it  seems  depends  upon  Btatutc.  a  raort^'ap;ee  who  receives 
poBsessIon  of  the  goods,  at  the  execution  of  tho  mortfago,  may  recover 
them  if  tortlously  taken  without  averring  any  breach  of  conditions 
In  tho  mortgage,  Meyer  v.  First  National  Bank.  63  Neb.  079,  88  N  \V. 
867. 

In  some  courts  It  is  held  thai  plaintiff.  Heoklng  to  recover  goods, 
obtained  from  hini  by  fraud.  niuHt  aver  the  farts  conslittitlnK  tlie  fraud; 
the  averment  that  plaintiff  Is  entitled  to  poKHcHKion  1h,  It  Is  Kiild. 
a  mere  concluHlon  of  Inw.  Payno  v.  Elliott.  ri4  fallf,  329,  And  ho  w1ut«< 
goods  are  taken  In  exe<utlon  and  It  Is  propoMod  tn  aKHali  tho  judRmont. 
the  faclM  constUutlDg  the  invalidity  muHt  be  Hct  forth;  a  mere  Koneral 


572  THE  LAW  OF  REPLEVIN. 

allegation  that  the  judgment  is  void,  is  insufficient,  Louisville  Co.  v. 
Payne,  103  Ind.  188,  2  N.  E.  582. 

The  complaint  must  show  title  and  the  right  to  possession  at  the 
institution  of  the  suit;  to  ..ver  this  as  of  an  earlier  date,  will  not 
suffice.  Holly  v.  Heiskell,  112  Calif  174,  44  Pac.  466;  Truman  v.  Young, 
121  Calif.  490,  53  Pac.  1073;  Kimball  Co.  v.  Redfield,  33  Ore.  292,  54 
Pac.  216;  VanAlstine  v.  Wheeler,  135  Calif.  232.  67  Pac.  125.  And  the 
averment  that  the  defendant  "  still  unlawfully  retains  the  possession," 
etc.,  does  not  cure  this  defect,  Id. 

In  replevin  for  a  dwelling  house;  a  general  averment  that  it  is 
personalty  is  sufficient.     Adams  v.  TuUy,  164   Ind.  292,  73  N.  E.  595. 

Must  shoto  a  Right  to  Possession. — The  plaintiff  must  aver  the  right 
to  immediate  possession  of  the  goods,  Cameron  v.  Wentworth,  23  Mont. 
70,  7  Pac.  648:  Entsminger  i\  Jackson,  73  Ind.  144;  may  omit  the  word 
"  immediate."  Smith  v.  Wisconsin  Co.,  114  Wis.  151,  89  N.  W.  829.  If 
plaintiff  relies  upon  a  mortgage  with  the  insecurity  clause,  he  must 
aver  that  the  mortgage  debt  has  not  been  paid,  Hudelson  v.  First  Na- 
tional Bank,  51  Neb.  557,  71  N.  W.  304;  but  otherwise  if  he  shows  that 
the  goods  have  been  attached  on  process  against  the  mortgagor,  Steven- 
son V.  Lord,  15  Colo.  131,  25  Pac.  313;  must  show  what  promise  or 
obligation  the  mortgage  secures,  and  breach  of  the  condition,  or  facts 
entitling  plaintiff  to  possession,  Thompson  Co.  v.  Nicholls,  52  Neb. 
312,  72  N.  W.  217.  The  averment  that  the  mortgage  debt  is  due, 
where  necessary,  need  not  be  in  express  terms;  where  it  appears  by  the 
averments  of  the  complaint,  this  is  sufficient,  Rodgers  v.  Graham,  36 
Neb.  730,  55  N.  W.  243.  Where  the  action  is  founded  on  the  breach  of 
a  covenant  in  the  mortgage,  to  keep  a  strict  account  of  sales,  and 
render  a  statement  on  the  first  of  each  month  and  turn  over  the 
proceeds,  etc.,  it  need  not  be  averred  that  any  sales  have  been  made 
nor  moneys  received,  or  that  there  was  any  surplus  after  the  allowances 
permitted  by  the  mortgage,  Johnson  v.  Hillenbrand,  101  N.  W.  33. 

Must  show  a  Wrongful  Detention. — A  mere  averment  of  detention 
will  not  suffice,  Stahl  v.  Chicago  Co.,  94  Wis.  315,  68  N.  W.  954;  Louis- 
ville Co.  V.  Payne,  103  Ind.  188,  2  N.  E.  582.  Demand  and  refusal  need 
not  be  averred,  Milligan  v.  Brooklyn  Co.,  34  Misc.  55,  68  N.  Y.  Sup.  744; 
nor  the  facts  constituting  a  conversion;  it  is  sufficient  to  aver  the 
ultimate  fact  and  not  the  evidence  of  it.  Id.  Kuhn  v.  McAllister,  1  Utah 
273,  96  U.  S.  87,  24  L.  Ed.  615.  But  see  Frischman  v.  Mandel,  2G  Misc. 
820,  56  N.  Y.  Sup.  1029.  An  allegation  that  the  defendant,  a  sheriff, 
seized  the  goods  under  execution  against  a  third  person  and  that  such 
third  person  obtained  the  goods  of  the  plaintiff  by  fraud,  is  sufficient 
as  to  this,  Desbecker  v.  McFarline,  42  Ap.  Div.  455,  59  N.  Y.  Sup.  439, 
affirmed,  166  N.  Y.  625,  60  N.  E.  1110.  It  is  not  necessary  to  aver  the 
taking  of  the  goods;  allegation  of  an  unlawful  detention,  suffices.  Hale 
V.  Wigton,  20  Neb.  83,  29  N.  W.  177.  But  the  averment  of  an  unlawful 
taking  will  not  impair  the  jurisdiction  of  the  court,  where  an  un- 
lawful detention  is  also  averred,   even   although  the  unlawful  taking 


PLEADING.  573 

appears  to  have  been  in  another  jurisdiction  than  that  in  which  the 
suit  was  commenced,  Nebeker  v.  Harvey,  21  Utah,  363,  60  Pac.  1029. 

Joinder  of  Counts. — It  seems  that  in  Texas  a  count  in  replevin  may 
be  united  with  a  count  for  damages,  and  a  count  for  the  conversion 
of  other  goods,  Wooley  v.  Bell.  Tex.  Civ.  Ap.  68,  S.  W.  71. 

Allegations  as  to  Value. — The  complaint  need  not  state  the  separate 
value  of  the  separate  articles,  Byrne  v.  Lynn,  18  Tex.  Civ.  Ap.  252,  44  S. 
W.  311,  544;  but  on  motion,  plaintiff  may  be  required  to  value  each  arti- 
cle separately.  Hall  v.  Law  Guarantee  Co..  22  Wash.  305,  60  Pac.  643, 
There  is  no  occasion  to  aver  the  value  of  the  goods,  as  the  basis  of  the 
liability  of  the  sureties  in  the  bond,  McLeod  Co.  r.  Craig,  Tex.  Civ.  Ap. 
43  S.  W.  934. 

Damages. — The  ad  damnum  need  not  cover  the  value  of  the  goods, 
but  only  the  damages  for  detention,  Younglove  r.  Knox,  44  Fla.  743. 
33  So.  427.  Special  damages  from  injury  to  the  goods  while  in  de- 
fendant's possession,  must  be  expressly  averred,  Rosecrans  v.  Asay, 
49  Neb.  512,  68  N.  W.  627.  An  averment  that  while  the  goods  were 
in  defendant's  possession  they  were  "  damaged  and  destroyed  for 
the  amount  set  opposite  each  article,"  followed  by  a  list  of  the  goods 
and  an  amount  set  opposite  to  each,  is  sufficient,  after  verdict.  Id. 
A  mere  demand  of  judgment  for  the  goods  "  with  damages  for  their 
taking  and  detention,"  not  setting  forth  any  facts  out  of  which  damages 
could  arise,  except  the  taking  and  detention,  is  not  sufficient  to  entitle 
the  defendant  prevailing,  to  special  damages,  Shafer  v.  Russell,  28 
Utah,  444,  79  Pac.  559. 

Need  not  Conform  to  the  Affidavit. — The  complaint  neeJ  not  corre- 
spond with  the  affidavit.  Moser  r.  Jenkins,  5  Ore.  447.  The  affidavit 
described  "one  frame  building  now  in  course  of  erection  and  the 
appurtenances  belonging  thereto."  The  complaint  described  "  all  the 
lumber  and  materials  "  on  a  certain  lot.  The  court  refused  to  strike 
it  off.  Waters  v.  Reuber,  16  Neb.  99,  19  N.  W.  687. 

Prayer. — Where  the  statute  prescribes  that  judgment  shall  be  given 
In  the  alternative  for  the  goods  or  their  value,  the  plaintiff  need  not 
in  his  complaint  demand  judgment  for  the  value.  Chase  County  Bank  v. 
Thompson,  54  Kans.  307,  38  Pac  274.  If  the  complaint  be  otherwise 
sufficient  its  effect  is  not  Impaired  by  an  Improper  prayi'r  for  relief.  If 
the  defendants  answer,  any  proper  relief  may  be  awarded.  More  t'. 
Finger,  128  Calif.  313.  00  Pac.  933. 

Verification. — Omission  to  verify  com|)laInt  Is  not  Jurisdictional, 
the  defect  Is  waived  where  not  aflsailed  before  Judgment,  Dorrluglon  v. 
Meyer,  8  Neb.  213. 

I'lia  or  Ansuer.  in  General. — An  answer  purporting  lo  go  to  tlio 
whole  complaint,  but  In  fa<t  reHi)onding  to  a  |)art  only,  Is  bad,  FIhbp  t'. 
Katzentlne.  93  Ind.  490.  An  anHwer,  which  elHewliere  than  In  the 
commencement,  directs  Itself  to  a  part  only  of  tin-  cumplulnt  and 
answers  that  part  fully.  Is  Bufflclenl.  Bowen  v.  Uoach.  7H  Ind.  361.  An 
answer  directed  lo  a  particular  parsKraph  of  the  complaint  and  aver- 
ring that  "  whether  tin-  mallerH  an<l   thliiKH  set  forth   therein  are  truo 


574  THE  LAW  OF  REPLEVIN. 

or  false,  defendant  has  no  knowledge  or  information  suflRriont  whereof 
to  form  a  belief  and  he  therefore  denies  the  same,"  is  suflBclent,  Seattle 
National  Bank  v.  Meerwaldt,  8  Wash.  630,  36  Pac.  763;  distinguishing 
Collins  V.  Publishing  Co.,  1  Misc.  211,  20  N.  Y.  Sup.  892.  A  denial  upon 
information  and  belief,  is  the  proper  form  of  denial  where  defendant 
has  information  inducing  the  belief  that  the  complaint  is  untrue,  but 
which  information  falls  short  of  knowledge,  Russell  ).'.  Admundson,  4  N. 
D.  112,  59  N.  W.  477.  A  denial  that  plaintiff  is  the  owner  and  averring 
that  as  to  "  whether  he  is  entitled  to  possession  defendant  has  not 
sufficient  information  or  belief  to  enable  him  to  answer,  and  on  that 
ground  denies  the  same,"  is  sufficient  to  put  in  issue  both  the  property 
and  the  right  of  pcosession,  Cunningham  v.  Skinner,  65  Calif.  385,  4 
Pac.  373.  The  answer  need  not  aver  continued  right  in  defendant,  down 
to  the  date  of  its  interposition,  Pico  v.  Pico,  56  Calif.  453.  Inconsistent 
pleas  may  be  pleaded.  Holmes  v.  Tarble,  77  111.  Ap.  114.  Each  plea 
must  be  complete  in  itself  without  reference  to  any  other.  Spahr  v. 
Tartt,  23  Ills.  Ap.  420.  Property  in  a  stranger  is  sufficient  answer, 
Krewson  v.  Purdom,  13  Ore.  563,  11  Pac.  281.  And  a  traverse  of  the 
plaintiff's  property,  is  sufficient.  Lamping  v.  Payne,  83  Ills.  463.  And 
in  Vermont,  the  general  issue,  Campbell  v.  Camp,  69  Vt.  97,  37  Atl. 
238.  Non  cepit  admits  the  plaintiff's  title,  Rowland  v.  Mann,  6  Ired.  L. 
38;  and  non  detinet,  Mattson  r.  Hanisch,  5  Ills.  Ap.  102;  Miller  v.  Gable, 
30  Ills.  Ap.  578.  So  the  plea  of  not  guilty,  Stewart  v.  Mills,  18  Fla.  57. 
A  disclaimer  presents  no  issue,  it  is  not  even  a  traverse  of  the  wrong- 
ful detention,  Zeisler  v.  Bingman,  9  Kans.  Ap.  447,  60  Pac.  657.  In 
Connecticut  by  statute,  if  defendant  would  deny  the  detention  he 
must  file  with  his  plea  a  disclaimer  of  title,  McNamara  v.  Lyon,  69  Conn. 
447,  37  Atl.  981.  Where  evidence  of  property  in  defendant  may  be 
received  under  a  general  denial,  it  is  not  error  to  strike  out  a  special 
plea  of  property  in  defendant,  Sparks  v.  Heritage,  45  Ind.  66. 

Plea  or  Answer,  in  General. — An  answer  averring  that  the  defendant 
purchased  the  goods  of  the  plaintiff  at  a  price  named,  and  has  paid 
for  them  accordingly,  is  a  good  defense,  Baldwin  v.  Burrows,  95  Ind. 
81.  The  answer  may  set  up  that  plaintiff's  only  right  is  derived  under 
a  particular  writing  set  forth,  and  if  the  writing  confers  no  right  the 
answer  is  sufficient.  Dixon  r.  Duke,  85  Ind.  434. 

General  Denial. — Every  defense  is  admissible  under  a  general  denial. 
White  V.  Gemeny,  47  Kans.  741,  28  Pac.  1011,  27  Am.  St.  320;  Street  v. 
Morgan,  64  Kans.  85,  67  Pac.  448;  Schulenberg  v.  Harriman,  21  Wall, 
(88  U.  S.)  44,  22  L.  Ed.  551;  Livingston  v.  Moore,  Neb.,  89  N.  W.  289; 
Randall  v.  Gross,  Neb.,  93  N.  W.  223;  Webster  v.  Brunswick  Co.,  37 
Fla.    433,    20    So.    536. 

The  plea  admits  any  evidence  going  to  defeat  plaintiff's  claim,  Jen- 
kins V.  Mitchell,  40  Neb.  664,  59  N.  W.  90;  Haas  v.  Altieri,  2  Misc. 
252.  21  N.  Y.  Sup.  950;  Pulliam  v.  Burlingame,  81  Mo.  Ill,  51  Am.  Rep. 
229;  e.  fir.,  that  the  mortgage  under  which  plaintiff  claims  was  procured 
by  fraud  or  mutual  mistake.  Piano  Co.  v.  Daley,  6  N.  D.  330,  70  N.  W. 
277;  or  want  or  failure  of  consideration,  Aultman  v.  Stichler,  21  Neb.  72, 


PLEADING.  575 

31  N.  W.  242;  Iowa  Bank  v.  Frink.  Neb..  92  N.  W.  916:  or  duress  in 
procuring  such  mortgage,  iff;  or  usury  in  the  mortgage  debt.  Davis  ik 
Culver,  58  Neb.  265,  78  N.  W.  504;  that  such  mortgage  is  for  any  reason 
invalid.  Payne  v.  McCormick  Co..  11  Okla.  318.  66  Pac.  2S7;  that  defend- 
ant had  sold  the  goods  to  the  plaintiff  at  a  price  to  be  fixed  by  a  third  per- 
son, plaintiff  to  pay  defendant  the  difference  between  the  mortgage  debt 
and  the  valuation,  and  that  after  the  appraisement  was  made  plaintiff 
refused  to  comply  with  his  agreement.  Deford  t'.  Hutchinson,  45  Kans. 
318,  25  Pac.  641;  a  sale  made  by  an  agent  of  plaintiff,  and  subsequent 
ratification,  Johnston  r.  Milwaukee  Co.,  49  Neb.  68,  68  N.  W.  383; 
title  in  a  stranger,  Pitts  Works  v.  Young,  6  S.  D.  557,  62  N.  W.  432; 
Griffin  v.  Long  Island  Co.,  101  N.  Y.  348.  4  N.  E.  740;  Kennett  v.  Fickel, 
41  Kans.  211,  21  Pac.  93;  Timp  r.  Dockhara,  32  Wis.  146;  though  de- 
fendant does  not  connect  himself  with  that  title,  Siedenbach  v.  Riley, 
111  N.  Y.  560,  19  X.  E.  275;  that  defendant  is  entitled  to  posscssioa 
of  the  animals  demanded,  under  contract  with  the  plaintiff  for 
the  agistment  thereof,  which  contract  has  not  yet  expired,  Schrandt  v. 
Young,  62  Neb.  255,  86  N.  W.  1085;  that  defendant  at  the  time  the 
writ  issued  was  entitled  to  a  lien  on  the  goods.  Basset  v.  Haren,  61 
Minn.  346,  63  N.  W.  713;  breach  of  a  warranty  under  which  a  machine 
was  purchased  and  waiver  of  a  condition  requiring  notice  of  its  un- 
satisfactory operation.  Advance  Co.  v.  Pierce,  74  Mo.  Ap.  676;  title  in 
defendant,  Timp  r.  Dockham,  supra:  a  mortgage  from  the  common 
source  of  title  senior  to  the  transfer  under  which  plaintiff  claims. 
Westbay  v.  Milligan,  74  Mo.  Ap.  179;  a  partnership  between  plaintiff  and 
defendant  and  that  the  goods  are  partnership  property,  Downtain  r.  Ray, 
Tex.  Civ.  Ap.  71  S.  W.  758;  the  Statute  of  Frauds.  Dixon  v.  Duke.  85  Ind. 
434;  VanDyke  v.  Clark,  64  Hun.  636,  19  N.  Y.  Sup.  650;  that  plaintiff's 
title  originated  in  a  mortgage  executed  by  defendant  and  which,  the  de- 
fendant being  illiterate,  was  falsely  read  to  him.  Piano  Co.  r.  Person, 
12  S.  D.  448.  81  N.  W.  897;  Payne  v.  McCormick  Co..  supra;  that  an 
absolute  bill  of  sale,  relied  upon  by  the  plaintiff,  was  in  fact  given  as 
security,  Kerron  v.  Northern  Pacif.c  Co.,  1  Wash.  241,  24  Pa^^.  445;  fraud 
In  the  Inception  of  the  plaintiff's  title,  Woodbridge  t'.  Dewitt,  51  Neb. 
98,  70  N.  W.  506;  Mullen  v.  Noonan.  44  Minn.  541.  47  N.  W.  164;  or  forg- 
ery, Gandy  v.  Pool.  14  Neb.  98.  15  N.  W.  223;  Justification  under  process. 
Williams  V.  Eikenberry,  22  Neb.  210,  34  N.  W.  373;  Furnian  r.  Tonny, 
28  Minn.  77.  S.  C.  sub  nom.,  Wurman  i'.  Furman.  9  N.  W.  172;  Best  t'. 
Stewart,  48  Neb.  860,  67  N.  W.  RSI;  that  plaintiff's  title  is  the  result  of 
a  fraudulent  consplraty  to  cheat  the  creditors  under  an  attachment  In 
whose  favor  the  defendant  as  an  ofllcer  has  Kelzed  the  goods,  Smith  v. 
Brockett.  69  Conn.  492.  38  Atl.  57;  justification  under  proceHs  against  a 
third  person.  Young  v.  Glaarock.  79  Mo.  574;  Fruits  v.  Klmore,  8  Ind.  Ap. 
278,  34  N.  E.  829;  Connor  v.  Knott,  8  S.  D.  304.  66  N.  W.  461;  Ijine  v. 
SparkH.  75  Ind.  278;  levy  under  execution  agaiiiht  a  thini  person,  and 
that  an  anHlgnment  for  rredltorH  by  Kuch  third  poruon  umler  which 
tht5  plaintiff  ( lalmH.  Ir  fraudulent.  Ilolmburg  tv  Dran.  21  KanH. 
73,  and  aee  Balioy  v.  Swalu,  45  O.  St.  057;  Merrill  v.  WedKewood.  25  Ncl>. 


576  THE  LAW  OF  REPLEVIN. 

283.  41  N.  W.  149;  a  levy  under  process  against  H,  and,  plaintiff  relying 
upon  a  purchase  from  H,  that  possession  continued  with  H  after  the 
alleged  sale.  Feeney  v.  Howard,  79  Calif.  525.  21  Pac.  984,  4  L.  R.  A.  82G, 
12  Am.  St.  162;  title  to  a  moiety  of  the  goods  in  a  third  person,  execu- 
tion against  such  third  person  directed  to  defendant  as  sheriff,  and  a 
levy  thereunder,  Branch  v.  Wiseman,  51  Ind.  1.  An  officer  pleading  a 
general  denial  with  a  special  plea  of  justification  will  not  be  restricted 
to  the  matter  specially  pleaded,  Horkey  t.  Kendall,  53  Neb.  522,  73  N. 
W.  953.  And  though  the  defendant  plead  fraud  and  fail  in  his  proofs 
he  may,  under  the  general  denial,  rely  upon  the  mistake  or  other  matter 
of  defense,  Piano  Co.  v.  Daly,  6  N.  D.  330,  70  N.  W.  277.  Several  cases 
limit  the  liberality  of  the  defense  in  the  general  denial  to  the  case 
in  which  the  plaintiif's  allegation  of  title  is  in  general  terms,  Burchinell 
V.  Butters.  7  Colo.  Ap.  294,  43  Pac.  459;  Basset  v.  Haren,  61  Minn.  346, 
63  N.  W.  713;  Jones  v.  McQueen,  13  Utah,  178,  45  Pac.  202;  Cumbey  v. 
Lovett,  76  Minn.  227,  79  N.  W.  99;  Gallick  v.  Bordeaux,  22  Mont.  470,  S6 
Pac.  961;  Kerron  v.  Northern  Pacific  Co.,  supra.  In  Gallick  v.  Bordeaux, 
supra,  the  court  say  there  are  reasons  requiring  that  where  the  defend- 
ant would  assail  the  transaction  under  which  the  plaintiff  claims  as 
fraudulent  as  against  creditors  of  his  vendor,  the  defendant  should  set 
up  expressly  the  process  under  which  he  justifies;  over-ruling  Bickle  v. 
Irvine,  9  Mont.  251.  In  Reed  v.  Reed,  13  la.  5,  under  a  plea  merely  de- 
nying plaintiff's  title,  and  averring  right  of  possession  in  another,  it  was 
held  that  defendant  could  not  be  permitted  to  show  that  a  receipt  ex- 
ecuted by  himself  to  the  plaintiff,  agreeing  to  account  to  him  for  the 
'goods,  was  deposited  with  a  third  person  to  be  delivered  only  upon  a 
condition  never  performed,  and  that  the  goods  were  the  property  of  an- 
other. In  Kerron  v.  Northern  Pacific  Co.,  supra,  it  was  held  that  if  the 
plaintiff  set  up  in  his  complaint  a  bill  of  sale  from  defendant,  the  de- 
fendant, if  he  would  make  this  defense,  should  plead  expressly  that  the 
bill  of  sale  was  intended  as  security.  Great  liberality  is  allowed  to  the 
defense,  under  the  general  denial,  Payne  v.  McCormick  Co.,  11  Okla. 
318,  66  Pac.  287.  It  dispenses  with  an  avowry  or  cognizance,  D'Arcy  v. 
Steuer,  179  Mass.  40,  60  N.  E.  405.  A  special  plea  of  property  in  defend- 
ant, pleaded  in  connection  with  plea  of  not  guilty,  may,  where  by  statute 
the  plea  of  not  guilty  puts  in  issue  the  right  of  possession,  wrongful 
taking  and  detention,  be  stricken  out  on  motion,  Holliday  v.  McKinne, 
22  Fla.  153.  The  rights  of  the  parties  mtiy  be  fully  shown  and  fully  de- 
termined under  a  general  denial,  Cool  ?'.  Roche,  15  Neb.  24,  17  N.  W.  119. 
In  Vermont  the  plea  of  not  guilty  puts  in  issue  the  plaintiff's  right  to 
possession,  the  wrongful  taking  and  the  wrongful  detention  by  defend- 
ant, Starkey  v.  Waite,  69  Vt.  193,  37  Atl.  292.  In  Michigan,  under  a 
statute  that  the  plea  of  the  general  issue  shall  put  in  issue  the  detention, 
plaintiff's  property,  and  plaintiff's  right  to  possession,  the  defendant  may 
show  in  justification  a  judgment  and  execution,  and  a  levy  thereunder 
upon  the  goods  of  the  defendant  therein,  or  that  defendant  holds  the 
goods  as  administrator  of  a  deceased  person.  Singer  Co.  v.  Benjamin,  55 
Mich.  330,  21  N.  W.  358,  23  Id.  25.     In  Connecticut  the  defendant  may 


PLEADING.  577 

plead  the  general  issue  "  with  or  without  notice."  as  may  be  necessary. 
An  officer  may  justify  under  this  plea  and  the  notice  is  liberally  con- 
strued in  favor  of  the  pleader.  Smith  v.  Brockett,  69  Conn.  492.  38  Atl. 
57.  It  seems  that  independent  of  statute,  the  general  issue  admits 
evidence  of  property  in  the  defendant  or  in  a  stranger.  Smith  v.  Harris, 
76  Ind.  104. 

Plea  in  Abatement. — In  Weber  r.  Henry,  16  Mich.  399,  it  was  doubted 
whether  a  claim  under  levy  of  process  from  the  Federal  Court  by  an 
officer  of  that  court  should  not  be  pleaded  in  abatement.  Objections 
to  the  jurisdiction  must  be  taken  in  the  first  instance,  Huck  r.  Young, 
1  Ind.  Ap.  558,  27  N.  E.  1106.  Non-joinder  of  parties  plaintiff  must  be 
pleaded  in  abatement,  Bartlctt  v.  Goodwin,  71  Me.  350.  Where  in  the 
circuit  court  of  the  United  States  the  action  was  brought  by  the  as- 
signee of  the  owner  of  goods  taken  for  a  tax  levied  under  authority  of 
the  state  a  plea  to  the  jurisdiction  was  entertained.  Deshler  v.  Dodge, 
16  How.  622,  14  L.  Ed.  1084. 

^Vhat  must  be  Specially  Pleaded.  If  the  defendant  would  show  that 
he  came  into  possession  of  stolen  goods  innocently,  he  must  plead  it; 
the  general  denial  only  raises  the  question  whether  defendant's  posses- 
sion is  lawful.  Milligan  i'.  Brooklyn  Co.,  34  Misc.  55,  68  N.  Y.  Sup. 
744.  If  the  ct)mplaint  sets  up  as  the  basis  of  the  plaintiff's  right  a  bill 
of  sale  from  the  defendant,  and  the  defendant  contends  that  it  was  in 
fact  a  mortgage,  he  must  plead  it  specially.  Kerron  v.  Northern  Pacific 
Co.,  1  Wash.  241,  24  Pac.  445.  If  the  defendant  would  deny  that  he 
was  in  possession  of  the  goods  at  the  institution  of  the  action  he  must 
plead  such  denial,  McLeod  v.  Johnson,  96  Me.  271,  52  Atl.  760;  so  of 
usury  in  the  mortgage  debt,  for  which  the  plaintiff  has  seized  the  goods, 
Burns  v.  Campbell,  71  Ala.  271;  or  fraud  in  the  bill  of  sale  through 
which  the  plaintiff  claims,  Burrows  v.  Waddell.  52  la.  195,  3  N.  W.  37; 
or  payments  made  by  the  defendant  to  plaintiff,  in  order  to  abate  the 
judgment  for  the  value.  Simpson  Co.  v.  Marshal.  5  S.  D.  528,  59  N.  W. 
728;  or  a  lien  upon  the  goods,  Guille  v.  Wing  Fook.  13  Ore.  577,  11 
Pac.  277.  If  mortgagee  replevies  from  an  ofnccr,  the  latter,  in  order  to 
show  payment  of  the  mortgage  debt,  must  plead  it  affirmatively.  Anient 
t.  Greer,  37  Kans.  648,  16  Pac.  102.  So  If  the  defendant  would  protect 
himself  by  the  judgment  in  a  former  action  by  a  third  person  in  which 
the  plaintiff  intervened,  he  must  plead  the  record  according  to  the 
fact;  he  must  set  up  the  suit,  the  plaintiff's  Intervention  therein,  and 
the  Judgment.  Cavener  r.  Shinkle,  89  Ills.  161.  And  If  an  officer  would 
justify  undor  an  attachmont  against  a  third  porHon  h«>  muKt  aver  an 
Indebtedness  from  the  defendant  In  the  attacliiiient  to  the  pliilntifT 
therein,  and  show  that  the  proceedings  In  that  suit  coiiforiued  to  the 
statute,  Jones  v.  Mi  Queen.  13  I'tah  17X.  45  Pac  2<i2.  And  If  he  desires 
to  show  fraud  In  the  transfer  under  whl<-h  the  plalntirr  clainiH  wn  an 
Intervenor,  he  must  plead  Huch  fratjd.  IJurrowH  r.  WaddelJ,  suiira.  An<l 
If  the  ofllrer  In  HUch  caHf,  JuHtlfylng  un<ler  proceHH  UKaliiHt  A  has  levied 
upon  goods  In  poKsesslon  of  li.,  an  avemietit  thai  H.  having  olitnlned 
from  A  a  bill  of  uale  as  uecur.ty  for  a  8um  of  money,  used  It  fruudulenlly, 
37 


578  THE  LAW  OF  REPLEVIN. 

to  gain  a  secret  advantage  over  other  creditors  of  A  by  claiming  a 
larger  amount  than  actually  due,  he  must  also  aver  a  tender  of  the 
amount  actually  due  prior  to  the  levy,  Wise  v.  Jefferis,  2  C.  C.  A.  432, 
51  Fed.  641.  The  value  of  the  goods  and  the  damages  alleged,  are 
material  allegations,  and  must  be  traversed  by  the  answer,  or  defendant 
will  be  held  to  admit  the  same.  Tucker  v.  Parks,  7  Colo.  62,  1  Pac.  427; 
but  the  admission  of  damages  is  construed  to  go  no  further  than  that 
plaintiff  has  sustained  such  damages  as  are  consequential  to  the  facts 
alleged,  Id. 

Demand  of  Return. — No  judgment  for  return  can  be  given  unless 
the  defendant  by  his  answer  demands  a  return,  Summer  xk  Kelly,  38 
S.  C.  508,  17  S.  E.  364;  Aultman  Co.  v.  O'Dowd,  73  Minn.  58.  75  N.  W.  756; 
Bown  V.  Weppner,  62  Hun,  579,  17  N.  Y.  Sup.  193;  Banning  v.  Marleau, 
101  Calif.  238,  35  Pac.  772.  Contra,  Carrier  v.  Carrier,  71  Wis.  Ill,  36 
N.  W.  626;  Harvey  v.  Ivory,  35  Wash.  397,  77  Pac.  725;  Ulrich  v.  Mc- 
Conaughey,  63  Neb.  10,  88  N.  W.  150. 

Joinder  of  Defenses. — Defendant  pleading  fraud  specially  with  a  gen- 
eral denial  and  failing  under  the  special  plea,  may,  under  the  general 
denial  rely  upon  mistake  or  other  defense.  Piano  Co.  v.  Daly,  6  N.  D. 
330,  70  N.  W.  277.  Whatever  is  admitted  in  a  special  defense  operates 
so  far,  as  a  modification  of  the  general  denial,  Meixell  v.  Kirkpatrick, 
33  Kans.  282,  6  Pac.  241.  But  this  proposition  seems  inadmissible 
where  inconsistent  defenses  s're  allowed. 

Reply. — The  answer  of  property  in  a  third  person  only  controls  the 
allegation  of  plaintiff's  ownership;  it  is  not  new  matter  within  the 
meaning  of  the  code,  and  requires  no  reply,  Krewson  v.  Purdom,  13  Ore. 
563,  11  Pac.  281.  Defendant  answered  in  (1)  a  general  denial,  and 
(2)  that  he  was  sheriff,  etc.,  and  seized  the  goods  under  execution 
against  defendant.  No  reply  to  tile  latter  allegation  was  required.  White 
V.  Gemeny,  47  Kans.  741,  28  Pac.  1011.  27  Am.  St.  320;  Street  v.  Morgan, 
64  Kans.  85,  883.  67  Pac.  448,  1133.  The  answer  denied  paintiff's  title 
and  right  of  possession,  and  averred  that  one  Van  Waters  was  formerly 
owner  and  had  sold  to  defendant.  The  latter  allegation  is  not  new 
matter  and  requires  no  reply,  Williams  v.  Matthews,  30  Minn.  131, 
14  N.  W.  577.  The  defendant  justified  under  an  execution  issued  upon 
a  judgment  which  was  described;  the  reply  denied  "  that  there  was  any 
judgment  at  or  before  the  execution  issued  or  at  any  time  since." 
Held  sufficient  to  entitle  the  plaintiff  to  assail  the  judgment.  Balm  v. 
Nunn,  63  la.  641,  19  N.  W.  810. 

Change  of  Issues  by  Agreement. — The'  parties  may  change  the  issues 
by  agreement,  Bassett  v.  Haren,  61  Minn.  346,  63  N.  W.  713.  A  stipula- 
tion that  under  a  plea  of  the  general  issue  any  legal  defense  may  be 
shown,  is  effectual,  Robinson  v.  Hardy,  22  Ills.  An.  512.  In  Maryland 
Co.  V.  Dalrymple,  25  Md.  242,  the  stipulation  of  counsel  that  plaintiff 
should  be  "  considered  as  having  amended  his  declaration,"  by  adding 
such  counts  in  tort  as  the  evidence  at  the  trial  would  justify,  "  with 
the  same  agreement  as  to  pleas  and  replications,"  all  errors  in  plead- 
ings on  both  sides  released, — was  acted  upon  as  an  effectual  amend- 


PLEADING.  579 

ment.  If  the  plaintiff  try  the  case  upon  the  theory  that  the  right  of 
possession  is  in  issue  he,  is  bound  by  this  concession  upon  appeal,  Hall 
r.  Southern  Pacific  Co.,  6  Ariz.  378.  57  Pac.  617.  Where  the  plaintiff 
himself  proves  facts  which  preclude  a  recovery  the  defendant  may  have 
advantage  of  these  facts  without  pleading  them,  Esshom  r\  Watertown 
Co.,  7  S.  D.  74.  63  N.  W.  229. 

Construction. — All  reasonable  intendments  should  be  made  in  favor 
of  the  plaintiff's  pleading  when  first  assailed  after  judgment,  Merrill  v. 
Equitable  Co.,  49  Neb.  198.  C8  N.  W.  365.  Whatever  is  contained  or 
recited  in  an  exhibit  attached  to  the  complaint,  is  regarded  as  averred 
in  the  complaint,  Wells  v.  Wilcox,  68  la.  708,  28  N.  W.  29.  The  com- 
plaint alleged  that  plaintiff  made  his  promissory  note,  describing  it, 
for  the  accommodation  of  another,  and  delivered  it  to  the  payee 
solely  for  discount  at  a  certain  Bank,  the  proceeds  to  be  applied 
to  discharge  other  notes  of  said  payee,  endorsed  by  plaintiff  for  the 
accommodation  of  such  payee:  that  discount  thereof  at  said  bank  was 
refused,  and  that  defendant  without  the  knowledge  of  plaintiff  or  of 
payee  of  the  note,  wrongfully  took,  converted  and  "  disposed  of  it " 
to  his  own  use.  It  was  held  sufficient.  Decker  v,  Matthews,  12  N.  Y. 
313.  Allegations  that  defendant  wrongfully  took  and  detained  the 
goods,  and  converted  them  to  his  own  use  "  to  plaintiff's  damage,  etc.," 
make  an  action  of  replevin  ;the  averment  of  conversion  does  not  change 
the  action  to  trover,  Enos  v.  Bemis,  61  Wis.  656,  21  N.  W.  812.  Com- 
plaint averring  that  on  a  day  named  plaintiff  "  was  the  owner  and  en- 
titled to  possession  of  "  the  goods,  and  that  on  a  day  named  '•  defendant 
wrongfully  and  by  force  came  into  possession,"  etc.,  in  effect  avers 
a  taking  from  the  plaintiff's  possession,  and  is  sufficient.  Harris  r. 
Smith,  132  Calif.  316,  64  Pac.  409.  "  The  plaintiff  as  guardian  is  en- 
titled to  possession,  etc.,"  suflBciently  avers  property  in  the  lunatic  or 
infant,  Hoke  v.  Applegate,  92  Ind.  570.  An  averment  that  plaintiff 
who  sues  as  guardian  of  a  lunatic,  "  as  guardian,  etc.,  is  entitled  to 
possession,  etc.,"  sufficiently  states  that  the  goods  are  the  property  of 
the  lunatic,  Id.  "George  W.  Applegate,  guardian  of  Joseph  Stutsler, 
a  person  of  unsound  mind,  complaining  says,"  is  not  a  sulficiont  aver- 
ment that  the  lunatic  has  been  so  judicially  declared,  /(/.  A  general 
allegation  that  plaintiff  is  "  the  owner  of  and  entitled  to  immediate 
possession  of,"  the  goods  and  that  "  defendant  unlawfully  detains  the 
same,"  is  overcome  by  a  specific  statement  and  derivation  of  tin-  right 
which  shows  that  defendant's  d«'lfiition  is  lawful.  Thienie  v.  Zumpe. 
152  Ind.  359,  52  N.  E.  449.  An  avi-rnu-nt  that  plaintiffs  at,  etc.,  were  the 
owners  of  the  undivided  two-lhirds  of  certain  prenilKcH  by  virtue  of 
a  certain  testament  deH(  rlbed,  that  at  the  time  of  the  deuth  of  tho 
testator  "  there  was  and  for  many  years  had  been  deposited  hi  the  soil 
of  said  premises"  certain  tarthenwarc.  that  dttfcndant  look  thi'  said 
earthenware  and  detained  It.  etc.,  not  showing  when,  by  whom  or 
undfjr  what  circumstances  the  deposit  wa«  made,  nor  but  that  thi» 
deposit  was  made  by  the  defendant,  nor  but  thiH,  depoHJted  t)y  (hi« 
owner  of  the  soil,  all    knowledge  of   It  had   been   lost   to  memory,   Is 


580  THE  LAW  OF  REPLEVIN.' 

vicious.  Burdick  r.  Cheseborough.  94  Ap.  Div.   532.  88  N.  Y.  Sup.  13. 
The  complaint  must  chow  that  plaintiff  is  entitled  to  possession;   but 
this  need  not  be  by  the  use  of  these  identical  words.     An  averment 
that  the  defendants  "  wrongfully  detained  from  the  plaintiffs  the  follow- 
ing goods  and  chattels  of  the  plaintiffs,"  describing  them,  sufficiently 
livers    both    ownership    and    plaintiff's    right    to    possession.      What    is 
necessarily  implied  from  the  words  used  is  as  effectual  as  if  expressed, 
Grever  v.  Taylor,  53  O.  St.  621,  42  N.  E.  829.     A  plea  of  property  in 
the  defendant  is  a  denial  of  property  in  the  plaintiff.  Cooper  v.  Bake- 
man,  32  Me.  192.    The  complaint  averring  that  on  a  day  named,  and  at 
the  county  of  the  venue,  the  defendants  "  took  and  wrongfully  detained 
from   the  plaintiff  the   following  goods  and   chattels,   the  property  of 
the  plaintiff,"  describing  them,  "  in  which  plaintiff  claims  the  property 
and  right  to  immediate  possession,"  and  averring  demand  and  refusal, 
is  sufficient,  Towne  v.  Liedle,  10  S.  D.  4G0,  74  N.  W.  232.    The  complaint 
averring  that  plaintiff  is  the  duly  appointed  administrator  of  E.  M.; 
that  at  the  time  of  her  death  said  E.  M.  was  the  owner  of  certain  promis- 
sory notes,  describing  them,  that  they  are  in  possession  of  defendant, 
and  have  been  ever  since  the  death,  etc.,  that  plaintiff  after  his  ap- 
pointment as  administrator,  etc.,   demanded  the  said   notes,  and   that  . 
defendant  wrongfully  detains  the  same,  states  a  good  cause  of  action 
acainst  defendant,  not  as  administrator  in  his  own  wrong,  but  in  his 
individual  capacity,  McAfee  v.  Montgomery,  21  Ind.  Ap.  196,  51  N.  E. 
957.    Petition  averring  that  plaintiffs  are  the  owners  of  certain  specific 
movables,  that  they  are  in  possession  of  defendants,  who  unlawfully 
hold  the  same  and  refuse  to  deliver  the  same  to  petitioner,  notwith- 
standing amicable  demand,  praying  the  writ  of  sequestration  and  cita- 
tion to  the  defendants,  and  for  judgment  that  the  sheriff  place  defendants 
in  possession,  states  a  cause  of  action,  Levert  v.  Hebert,  51  L.  Ann. 
222,  25  So.  118.     Complaint  demanding  a  promissory  note  executed  by 
plaintiff  to  defendant,  averred  that  "  said  note  has  been  discharged  by 
appellant  by  giving  another  note,"  which  was  described,  "  in  lieu  and 
place  of  and  to  discharge  said  note  "   first  mentioned     .      .     "  which  de- 
fendant  now   holds."      Held    insufficient    for    not   showing   an    express 
agreement  that  the  new  note  should  discharge  the  old,  nor  that  the  new 
note  was  commercial  paper.  Combs  v.  Bays,  19  Ind.  Ap.  263,  49  N.  E. 
358.    No  matter  to  what  form  of  action,  at  common  law,  the  language 
of  the  declaration  is  appropriate,  the  court  will  consider  whether  the 
facts  stated  entitle  the  plaintiff  to  any  form  of  relief,  legal  or  equit- 
able, Kuhn  V.  McAllister,  1  Utah,  273,  96  U.  S.  87,  24  L.  Ed.  615.     An 
answer  that  defendant  purchased  the  goods  for  value  without  notice  of 
plaintiff's  claim,  is  bad  for  not  showing  when  the  purchase  was  made, 
nor  that  the  vendor  had  title,  Payne  v.  June,  92  Ind.  252.     An  answer 
that  the  goods  "  were  not  unlawfully  detained  by  defendant  nor  was 
plaintiff   entitled    to   the    immediate   possession    thereof,"    is   sufficient, 
Burlington  Co.  v.  Young  Bear,  17  Neb.  668,  24  N.  W.  377. 

A  denial  that  plaintiffs  are  entitled  to  the  goods  "  by  virtue  of  any 
valid  chattel  mortgage  executed  by,  etc.,"  is  a  mere  negative  pregnant. 


PLEADING.  581 

and  the  execution  of  the  mortgage  set  up  in  the  complaint  need  not 
be  proven,  Sargent  v.  Chapman,  12  Colo.  Ap.  529,  56  Pac.  194.  An  an- 
swer that  "  whether  said  warrant  came  to  the  hands  of  plaintiff  as 
alleged  "  defendant  has  no  knowledge,  etc.,  is  an  admission  that  the 
w^arrant  came  to  plaintiffs  hands  by  some  means,  for  the  purposes 
alleged,  Seattle  Bank  v.  Meerweldt.  8  Wash.  630,  36  Pac.  763.  A 
paragraph  of  the  complaint  alleged  that  desiring  the  collection  of  a 
certain  warrant  defendant  forwarded  and  delivered  to  one  Swartz 
"  the  said  warrant ",  with  an  endorsement  for  collection  for  account 
of  plaintiff.  The  answer  as  to  this  paragraph  averred  lack  of  knowledge 
or  information  sufficient  to  found  a  belief.  It  was  not  averred  that  the 
endorsement  was  made  by  the  plaintiff,  or  that  the  endorsement  was 
upon  the  warrant,  when,  as  averred,  Swartz  delivered  it  to  the  defend- 
ant. Held  that  the  fair  effect  of  the  denial  was  to  put  plaintiff  to  a 
proof  of  the  facts  entitling  him  to  the  warrant,  Id.  The  answer 
claimed  the  moneys  demanded  in  the  complaint,  as  a  gift  from  the 
ward  represented  by  the  plaintiff.  A  reply  that  the  ward  at  the  said 
time,  etc.,  was  "  of  unsound  mind,"  not  averring  a  judicial  ascertain- 
ment of  insanity,  or  the  appointment  of  a  guardian,  or  the  continuance 
of  the  unsoundness  of  mind  and  a  revocation  by  the  guardian  of  tho 
alleged  gift,  is  insufficient,  Hoke  v.  Applegate,  supra.  An  affidavit 
subscribed  by  one  as  "  president  "  of  a  corporation,  alleging  "  that  the 
corporation  "  had  possession  of  certain  books,  that  the  same  disap- 
peared without  his  consent  and  that  "  he  claims  title  to  and  possession 
thereof,"  Held,  that  the  individual  and  not  the  corporation  was  the 
plaintiff,  McEvoy  v.  Hussey,  64  Ga.  314.  Answer  of  one  defendant  as- 
serting title  in  another  avails  the  latter,  Carpenter  v.  Ingram,  Ark.  91 
S.  W.  25. 

Set-off  and  Counter-claim. — There  are  many  cases  which  hold  that 
a  counter-claim  or  a  plea  of  set-off  is  inadmissible  In  the  action  of  re- 
plevin, Talbott  V.  Padgett,  30  S.  C.  1G7,  8  S.  E.  845;  Kennett  v.  Fickel. 
41  Kans.  211.  21  Pac.  93;  Baldwin  v.  Burrows,  95  Ind.  81;  Badham  r. 
Brabham,  54  S.  C.  400,  32  S.  E.  444.  In  replevin  for  machinery  pur- 
chased by  defendant  from  plaintiff,  it  was  held  that  the  defendant  could 
not  set-off  damages  by  delay  in  the  delivery  of  the  machinery;  but  tho 
facts  seem  to  show  that  the  defendant  had  waived  tho  delay,  Frhk  Co.  v. 
Stephens,  7  Kans.  Ap.  74.'),  53  Pac.  378.  In  replevin  by  mortgagee 
against  mortgageor,  a  counter-claim  averred  that  tho  mortgago  debt  was 
for  moneys  advanced  to  enable  defendant  to  stock  and  cultivate  a  plan- 
tation rented  from  plaintiff,  and  that  plaintiff  had  maliciously  inter- 
meddled with  the  bands  on  the  plantation,  and  Induood  them  to  demand 
an  Increase  of  wages,  whereby  defendant  had  boon  duniaged  in  two 
thouKan<l  dollars,  which,  with  paynionts  and  other  muttorH  of  Hotoff 
averred  In  the  preceding  parts  of  the  answer,  wan  in  full  KuliHfactlon. 
Held,  not  a  proper  counterclaim  but  a  distinct  cauHe  of  action  for  a 
mallcioiiH  IreHpasH,  Hudson  v.  SnlpcH,  40  Ark.  75.  Replevin  for  two 
horseH;  a  counter  claim  for  damaKos  done  by  a  Htulllon  of  llie  plaintiff 
running  at  largo  contrary  to  Htatute,  Is  bad,  for  not  averring  that  Iho 


582  THE  LAW  OF  REPLEVIN. 

stallion  was  one  of  the  animals  aemanded  by  the  plaintiff,  Roberts  v. 
Johannas,  41  Wis.  616.  In  replevin  by  the  assignee  of  chattel  mort- 
gage defendant  cannot  set  up  a  counter-claim  against  the  payee  of  the 
negotiable  promissory  note  secured  by  the  mortgage,  National  Bank  v. 
Feeney,  9  S.  D.  550,  70  N.  W.  874.  If  the  officer  replevy  and  deliver  to 
the  plaintiff  goods  not  named  in  the  writ,  defendant's  only  remedy  is 
by  separate  action,  Warren  v.  Leland,  2  Barb.  613.  But  it  seems  in 
such  case,  the  facts  being  shown,  the  court  should  order  a  return  of 
the  goods;  the  court  has  plenary  power  to  control  its  process,  and  to 
correct  the  mistakes  and  excesses  of  its  officers.  The  defendant  is  not 
put  to  a  separate  action,  Dewey  v.  Hastings,  79  Mich.  263.  44  N.  W.  607. 
The  defendant  may  under  the  ordinary  code  provision  set  up  any 
equitable  defense;  but  where  he  admits  a  chattel  mortgage  founded  upon 
adequate  consideration  he  cannot  complain  that  the  plaintiff  under 
the  powers  of  the  mortgage  has  sold  the  goods,  and  cannot  return  them, 
and  pray  an  account  of  their  value  and  judgment  for  the  balance,  after 
deducting  the  mortgage  debt,  Schlessinger  v.  Cook,  9  Wyo.  256,  62 
Pac.  152.  And  the  defendant  cannot  counter-claim  for  damages  arising 
from  the  taking  under  the  writ,  even  though  the  answer  avers  that 
the  taking  was  unlawful,  Phipps  v.  Wilson,  125  N.  C.  lOG,  34  S.  E.  227; 
but  see  Mclntire  v.  Eastman,  post.  In  trover,  for  money  taken  by 
unlawful  force,  debts  owing  by  plaintiff  to  defendant,  cannot  be  set 
off,  Murphey  v.  Virgin,  47  Neb.  692,  66  N.  W.  652.  But  a  statute  pro- 
hibiting a  counter-claim  in  replevin  does  not  preclude  the  defendant 
from  demanding  return  of  the  chattels,  with  damages  for  the  detention, 
Mclntire  v.  Eastman,  76  la.  455,  41  N.  W.  102. 

In  other  courts  a  more  liberal  rule  is  allowed,  and  it  seems  that  the 
defendant  may  assert  by  way  of  counter-claim  any  cause  of  action  aris- 
ing out  of,  or  intimately  connected  with,  the  same  transaction  under 
which  plaintiff  claims  to  be  entitled  to  the  goods,  Wilson  v.  Hughes, 
94  N.  C.  182;  e.  g..  where  the  plaintiff  claims  under  a  chattel  mortgage 
given  for  the  price  of  the  goods,  defendant  may  counter-claim  for  a 
breach  of  warranty  in  the  sale,  Fletcher  v.  Nelson,  6  N.  D.  94,  69  N.  W. 
53;  and  so  by  statute  in  Alabama,  McDaniel  v.  Sullivan,  Ala.  39  So.  355; 
or  for  defects  in  the  machinery,  which  was  sold  under  representation 
of  perfect  condition,  Aultman  Co.  v.  McDonough,  110  Wis.  263,  85  N.  W. 
980,  see  Jesse  French  Co.  v.  Bradley,  138  Ala.  177,  35  So.  44;  for  damages 
sustained  by  defendant  by  the  failure  of  plaintiff  to  insure  the  ma- 
chinery according  to  contract  between  them,  Minneapolis  Co.  v.  Dar- 
nall.  13  S.  D.  279,  83  N.  W.  266;  or  an  indebtedness  from  the  plaintiff 
to  defendant,  so  as  to  show  that  nothing  was  in  fact  due  on  the  mort- 
gage, and  this  though  the  plaintiff  held  the  mortgage  as  assignee,  and 
the  set-off  was  entirely  disconnected  with,  and  separate  from  the  mort- 
gage indebtedness,  Davis  v.  Culver,  58  Neb.  265,  78  N.  W.  504.  A  con- 
ditional vendor  of  machinery  brought  replevin;  the  defendant  pleaded 
that  by  the  failure  of  plaintiff  to  deliver  the  machinery  within  the 
time  stipulated  he  had  been  damaged,  etc.,  held,  the  counter-claim  was 
properly  pleaded,  and  the  cause  was  transferred  to  the  equity  docket. 


PLEADING.  583 

Ames  Iron  Works  r.  Rea,  56  Ark.  450.  19  S.  W.  1063.     In  like  case  the 
defendant  was  allowed  to  counter-claim  for  damages  sustained  by  the 
plaintiff's  failure  to  deliver  according  to  his  contract.  Simpson  Co.  r. 
Marshal,  5  S.  D.  528,  59  N.  W.  728.     In  replevin  for  a  boat  the  defendant 
admitted  plaintiff's  title  and  pleaded  that  plaintiff  had  employed  him 
for  one  year  to  have  the  care  of  the  boat,  and  was  indebted  in  a  sum 
named  for  his  wages  and  board  promised;  the  counter-claim  was  held 
properly  interposed,  and  a  judgment  for  the  defendant  for  the  amount 
named,  was  affirmed,  Lapham  r.  Csborne.  20  Nev.  1G8,  18  Pac.  881.     In 
replevin  for  a  quantity  of  lumber  the  defendant  was  permitted  to  set 
up  in  defense  a  balance  due  him  by  a  former  owner  for  sawing  the  lum- 
ber,  and   his   lien   thereon   for   securing   this   balance,    Holderman   v. 
Manier,  104  Ind.  118.     In  Merchants  Co.  v.  Kentucky  Co.,  16  C.  C.  A. 
212,  69   Fed.   218,  a  plea  of  re-convention  was  received   for  damages 
sustained  by  defendant  by  reason  of  the  violation  of  a  contract,  out  of 
which    the    action    originated.      And    where    plaintiff    counted    upon    a 
mortgage  for  the  purchase  money  of  the  goods,  the  defendant  alleging 
a  new  contract,  and  the  violation  thereof  by  the  plaintiff,  was  allowed  to 
recover  the  amount  which  he  had  already  paid,  Baldwin  v.  Dewitt,  19 
Ky.  L.  Rep.  1248,  43  S.  W.  246;  and  in  like  case,  it  is  a  good  plea  that 
by  the  allowance  lor  usurious  interest  exacted  by  the  plaintiff  the  debt 
is  in  fact  discharged,  Nunn  r.  Bird,  36  Ore.  515,  59  Pac.  808;   and  that 
defendant  had  conveyed  lands  to  the  plaintiff  upon  parol  agreement  to 
credit  $500,  as  the  value  of  the  lands,  upon  the  mortgage,  Skow  v.  Locks, 
Neb.  91  N.  W.  204.     Senior  mortgagee  of  lands  seizes  wood  cut  there- 
from by  the  junior  mortgagee,  who  brings  replevin;    defendant   may, 
by  way  of  counter-claim,  assert  the  seniority  of  his  mortgage,  the  in- 
solvency of  the  mortgageor,  the  insufficiency  of  the  security,  and  that 
plaintiff  with  notice  of  such  insecurity,  being  in  possession,  cut  the  wood 
with  the  intent  to  impair  and   reduce  defendant's  security.  Carpenter 
V.  Manhattan  Co.,  93  N.  Y.  552.     In  replevin  for  cattle  the  defendant 
was  permitted  to  counter-claim  for  their  care  and  sustename,  Dunham 
r.  Dennis,  9  la.  543.     In  detinue  to  recover  a  horse  defendant  was  per- 
mitted to  plead  a  counter-claim  to  the  effect  that  he  had  e.xchangcd  the 
horse  for  lands,  upon  the  faith  of  defendant's  representation   that  he 
was  the  owner  of  the   lands,   whereas.  In   fact,  plaintiff  had   no  title, 
and  the  plaintiff  was  insolvent,  praying  rescission,  Walsh   r.  Hall,  66 
N.   C.   233.     In    replevin   for   cattle  the   plaintiff's  complaint   8«'t   up   a 
chattel  mortgage  and  default  in  Its  conditions;   the  defendant  pleiuled 
In  counter-claim  that  he  had   been   induci'd  to  purchase  the  catth'  by 
fraudulent  representations  of  the  plaintiff;  that  the  purchase  wuh  aflf-r 
wards  rescinded  by  mutual  aKrcciiicnl,  and  the  calllc  ri'turncd  to  plain 
tiff,  who  had  at  a  later  dale  ri-storcd  them  to  defendant  under  u  new 
agreement,    In   effect,   that   defendant    should    diKpt)Be   of   them    as   the 
agent  of  plaintiff;    that  defendant  kept  and  fed  the  cattle  until   tjiken 
by  plaintiff,  and  had  denian<led  the  niortKUKe  for  cancellation,     i'rnyer 
that  the  plalniiff  be  required  to  brlnjc  the  note  Into  court  for  cancelln- 
tion.     The  court  Haid    that   "  uu  equity   of   defendant   apperlatnlUK   to 


584  THE  LAW  OF  REPLEVIN. 

the  property  was  pleaded  In  this  part  of  the  answer.  It  was  therefore 
held  properly  stricken  out,  Anthony  i>.  Carp,  90  Mo.  Ap.  387,  sed  qwire. 
Held,  further,  that  the  counter-claim  for  feeding  the  cattle,  though  a 
defense  which  might  have  been  presented  under  the  general  denial,  dis- 
closed an  interest  in  the  property,  which  must  be  ascertained  and  deter- 
mined, Id.  But  damages  suffered  by  defendant  by  reason  of  the  fraud 
of  the  plaintiff  inducing  defendant's  purchase  of  the  cattle,  was  held 
not  a  proper  subject  of  counter-claim,  Anthony  v.  Carp,  supra. 

In  replevin  for  goods  distrained  for  rent  the  tenant  may  set-off  dam- 
ages sustained  by  the  failure  to  repair  as  covenanted  in  the  lease, 
Murray  v.  Pennington,  3  Grat.  91;  Bloodworth  v.  Stevens,  51  Miss.  475. 
If  the  plaintiff  asserts  a  lien,  anything  that  will  defeat  or  discharge 
the  lien,  in  any  manner,  may  be  interposed;  and  if  plaintiff  seeks  dam- 
ages for  detention,  whatever  defenses  will  diminish  or  defeat  the  re- 
covery, whether  set-off  or  counter-claim  or  designated  by  other  name, 
may  be  received,  McCormick  Co.  v.  Hill,  i04  Mo.  Ap.  544,  79  S.  W.  745; 
and  the  counter-claim  may  be  litigated,  by  consent  of  parties,  even 
after  the  original  action  is  dismissed.  Id.  See  Wooley  v.  Bell, 
Tex.  Civ.  Ap.  68  S.  W.  71;  Carpenter  v.  Insurance  Co.,  93  N.  Y.  553. 
In  trover  for  exempt  goods  set-off  is  not  allowed,  Caldwell  v.  Ryan,  Mo. 
Ap.  79  S.  W.  743. 

Amendments. — It  is  error  to  refuse  leave  to  amend  upon  application 
seasonably  made,  Welch  v.  Milliken,  57  Neb.  86,  77  N.  W.  363;  Swope 
V.  Burnham,  6  Okla.  736,  52  Pac.  924;  even  upon  the  trial,  Tackaberry  v. 
Gilmore,  57  Neb.  450,  78  N.  W.  32.  Plaintiff  may  be  allowed  to  amend 
upon  the  trial  so  as  to  demand  the  value,  Henderson  v.  Hart,  122  Calif. 
332,  54  Pac.  1110;  and  as  to  the  amount  of  the  commodity  demanded 
and  the  damages,  if  no  surprise  is  occasioned  to  the  defendant,  Cain  v. 
Cody,  29  Pac.  778;  and  so  as  to  increase  the  allegation  as  to  the  value  of 
the  goods  over  three-fold.  Leek  v.  Chesley,  98  la.  593.  67  N.  W.  580; 
and  by  inserting  specific  articles  not  named  in  the  original,  Kirch  v. 
Davies,  55  Wis.  287.  11  N.  W.  689;  so  as  to  aver  special  ownership  in 
lieu  of  a  general  ownership,  Welch  v.  Milliken,  supra;  Tackaberry  v. 
Gilmore,  supra;  even  before  a  referee;  and  so  as  to  demand  damages 
for  the  taking  or  conversion,  Riciotto  v.  Clement,  94  Calif.  105,  29  Pac. 
414;  National  Co.  v.  Sheahan,  122  N.  Y.  461,  25  N.  E.  858.  Misnomer 
of  the  parties  may  be  amended,  Stever  v.  Brown,  119  Mich.  196,  77  N.  W. 
704.  An  amendment  may,  where  all  parties  to  a  transaction  are 
present  at  the  trial,  be  allowed  so  as  to  charge  fraud  therein,  Kocher  v. 
Palmetier,  112  la.  84,  83  N.  W.  816:  if  all  parties  are  present,  Joyner 
V.  Early,  139  N.  C.  49,  51  S.  E.  778;  and  where  an  intervener  has  de- 
nied the  plaintiff's  title  in  general  terms,  he  may  upon  an  appeal  amend 
his  petition  by  alleging  that  the  title  was  obtained  by  fraudulent 
misrepresentation,  Woodbridge  v.  Dewitt,  51  Neb.  98,  70  N.  W.  506. 
But  it  is  error  to  allow  plaintiff  to  strike  from  his  complaint  a  portion 
of  the  goods  claimed,  where  the  defendant's  answer  avers  that  plain- 
tiff has  taken  the  goods  under  the  replevin,  and  demands  damages  in 
respect  thereof.  Howell  v.  Foster,  65  Calif.  169,  3  Pac.  647.     A  refusal 


PLEADING.  585 

to  allow  upon  trial  an  amendment  charging  specific  fraudulent  repre- 
sentations, to  induce  plaintiff  to  part  with  his  goods,  where  the 
original  complaint  charged  only  a  false  representation  by  the  buyer, 
that  he  was  solvent,  is  not  error,  Price  Co.  r.  Rinear.  17  Wash.  95, 
49  Pac.  223.  Where  the  complaint  is  amended  by  the  insertion  of 
articles  not  claimed  in  the  original  and  no  answer  is  put  into  the 
amendment,  there  is  no  issue  therfeon,  although  the  answer  to  the 
original,  after  certain  admissions,  among  ethers  "that  plaintiff  is  the 
owner  of  the  remainder  of  the  property  described  in  the  complaint," 
denied  all  other  averments  except  that  of  value,  Kirch  v.  Davies.  supra. 
No  amendment  can  create  a  cause  of  action  not  existing  at  the  date 
of  the  institution  of  the  suit,  Clemmons  v.  Gordon,  37  Misc.  835,  76 
N.  Y.  Sup.  909.  An  action  upon  a  replevy  bond  given  in  sequestration 
proceedings,  cannot,  after  the  sequestration  proceedings  are  dismissed, 
be  changed  into  an  action  for  the  conversion  of  the  goods,  Barrett  v. 
Harbarn,  22  Tex.  Civ.  Ap.  207,  54  S.  W.  644.  But  In  Elder  r.  Greene, 
34  S.  C.  154,  13  S.  E.  323,  it  was  intimated  that  an  action  upon  a  replevin 
bond  may  be  turned  into  an  action  of  trespass.  An  amendment  to 
the  complaint,  after  verdict,  so  as  to  increase  the  allegation  of  value 
should  not  be  permitted  without  granting  a  new  trial.  Younglove  t'. 
Knox,  44  Fla.  743,  33  So.  427.  An  amended  petition  relates  to  the 
commencement  of  the  action;  the  goods  need  not  be  surrendered  as  a 
condition  precedent  to  the  right  to  amend,  Pekin  Co.  r.  Wilson,  66  Neb. 
115,  92  N.  W.  176.  The  court  may  impose  reasonable  conditions  upon 
the  right  to  amend;  e.  g.,  that  the  party  shall  file  the  amendment  within 
ten  days  and  pay  all  costs,  Bayless  v.  McFarland,  10  Okla.  747,  63  Pac. 
859.  Failure  to  comply  with  the  order  only  deprives  the  party  of  the 
right  to  amend,  it  is  error  to  order  judgment  of  discontinuance.  Id. 
But  see  Austin  v.  Wauful,  36  N.  Y.  St.  779,  13  N.  Y.  Sup.  184,  where 
it  was  held  that  if  plaintiff  takes  a  continuance  upon  leave  to  amend 
his  complaint  within  a  limited  time  he  waives  error  in  the  antecedent 
proceedings,  and  if  he  fail  to  comply  with  the  rule  his  complaint  may 
be  dismissed.  Defendant  may  amend  so  as  to  demand  return  of  the 
goods,  even  after  appeal  and  reversal.  Banning  r.  Marleau,  101  Calif. 
238.  35  Pac.  772;  Aultman  Co.  v.  O'Dowd,  73  Minn.  58,  75  N.  W.  756.  And 
where,  after  verdl(  t,  leave  was  applied  for  to  amend  in  this  respect  and 
refused,  and  judgment  given  for  the  value,  the  Supreme  Court  tr«Miled 
the  amendment  as  made.  Young  v.  Glascock,  79  Mo.  574.  Defendant  may 
amend  in  this  respect,  even  after  reference,  a  trial  had  before  the  referee 
and  judgment  by  him  for  return,  Pico  v.  Pico.  56  Calif.  453  —and 
defendant  may  amend  by  averring  that  the  plaintiff  took  with  knowl- 
edge of  want  of  consideration  In  the  chattel  mortgage  upon  which  he 
relleH.  Nunn  v.  Bird,  36  Ore.  515,  59  Pac.  808;  and  so  an  to  allege  the 
value  of  the  goodB,  damagcH  by  the  detention  thereof,  and  bo  eh  to 
pray  return  and  diimugeH,  Mclntlre  tv  KaHtman.  76  la.  455,  41  N  W. 
162;  and  ho  aH  to  correct  a  mlHHtatemenl  of  tlie  amount  for  whlili 
d'-fendant  clalmH  a  lien  upon  th«'  goodH,  MarHe  Co.  t'.  AdaniH.  2  Ind. 
T.   119,  48  8.  W.  1023;   and  »o  ub  to  aver  that  the  goods  wore  replevlfd 


586  THE  LAW  OF  REPLEVIN. 

by  the  plaintiff  after  the  institution  of  the  action,  Carroll  v.  Sprague, 
59  Calif.  fiSf).  But  after  verdict  for  the  defendant  allowing  him  in  the 
alternative,  as  the  value  of  the  goods,  a  sum  in  excess  of  what  was 
claimed  in  his  answer,  he  should  not  be  allowed  to  amend  the  answer 
increasing  the  alleged  value,  without  granting  new  trial.  First  National 
Bank  v.  Calkins.  16  S.  D.  445,  93  N.  W.  G46.  The  answer  of  an  inter- 
vener may  be  amended,  Hamilton  v.  Duty,  36  Ark.  474.  Wliere  the  com- 
plaint counted  for  the  taking  and  detention,  without  more,  so  far  as 
appears,  held  proper  to  allow  an  amendment  to  the  reply,  showing  that 
defendant  as  sheriff  took  the  goods  tinder  an  attachment  against  a 
third  person,  and  that  the  suit  in  which  the  attachment  issued  had 
terminated  in  a  judgment  which  had  been  fully  satisfied  before  the 
institution  of  the  replevin.  Wise  v.  Jefferis,  2  C.  C.  A.  432,  51  Fed. 
641. 

Where  the  statute  provides  that  if  the  goods  be  not  taken  or  have 
been  returned  to  the  defendant  for  want  of  an  undertaking,  the  action, 
may  proceed  as  one  for  damages,  there  is  no  requirement  that  the 
plaintiff  in  the  contingency  specified  should  amend  his  petition;  the 
statute  in  effect  accomplishes  the  amendment,  Pugh  v.  Calloway,  10  O. 
St.  488;  Young  v.  Glascock,  supra.  The  court  of  review  cannot 
order  an  amendment  of  the  petition,  Thompson  Co.  v.  NichoUs,  52  Neb. 
312,  72  N.  W.  217.  The  allowance  of  an  amendment  will  not  be  reviewed 
on  appeal,  unless  manifest  abuse  of  the  discretionary  power  of  the 
court  is  shown,  Nunn  v.  Bird,  36  Ore.  515,  59  Pac.  808. 

Supplemental  Pleading. — Title  to  the  increase  of  live-stock,  born 
pending  an  action  for  the  recovery  of  the  dam,  may  be  litigated  in  the 
same  action  by  supplemental  petition,  Wade  v.  Gould,  8  Okla.  690,  59 
Pac.  11.  In  Morris  v.  Coburn,  71  Tex.  406,  9  S.  W.  345.  judgment  was 
ordered  for  the  value  of  the  dam  and  the  increase,  without,  so  far  as 
appears,  any  supplemental  pleading.  Replevin  against  the  sheriff  by  A 
for  goods  levied  upon  under  writs  against  B,  it  is  not  error  to  refuse 
a  supplement  complaint  showing  the  taking  under  writs  of  attachment 
issued  after  the  replevin  of  the  goods  at  the  suit  of  other  creditors, 
Carroll  v.  Sprague,  59  Calif.  655. 

Aider  by  Pleading  Over. — The  failure  of  the  complaint  to  aver  posses- 
sion by  defendant  is  cured  by  an  answer  alleging  that  defendant  seized 
the  goods  as  sheriff,  etc..  Garth  v.  Caldwell,  72  Mo.  622.  The  com- 
plaint averred  that  on  a  day  named,  prior  to  the  institution  of  the 
suit,  plaintiff  was  entitled  to  possession,  not  averring  that  he  was  still 
entitled;  the  answer  denied  that  on  the  day  named  or  at  any  time,  plain- 
tiff was  entitled  to  possession,  alleging  that  defendant  is  and  at  all 
times  has  been  the  owner  and  entitled  to  possession;  held  the 
answer  cured  the  defects  of  the  complaint,  Flinn  v.  Ferry,  127  Calif. 
648,  60  Pac.  434.  Complaint  not  showing  any  title  in  the  plaintiff, 
general  or  special,  but  merely  the  right  to  possession,  the  defendant's 
answer  setting  up  the  particulars  of  the  plaintiff's  claim  cures  the  vice, 
Dillard  v.  McClure,  64  Mo.  Ap.  488. 

Aider  by  Verdict. — The  failure  of  the  complaint  to  aver  expressly 


PLEADING.  587 

a  wrongful  taking  is  cured  by  verdict,  Roberts  v.  Porter,  78  Ind.  130. 
An  answer  which  "  admits  "  defendants  ownership,  avers  that  he  was 
unlawfully  deprived  of  it,  and  demands  judgment  for  return  and  dam- 
ages for  the  detention,  is  sufficient  after  verdiit.  Mi  Intire  v.  Eastman, 
76  la.  455.  41  N.  W.  162. 

Note  XXXII.  Evidence.  Presumptions. — Possession  raises  a  pre- 
sumption of  title,  Stevens  v.  Gordon,  87  Me.  564,  33  Atl.  27;  Stockwell  t'. 
Robinson,  9  Houst.  313,  32  Atl.  528;  Vinson  v.  Knight,  137  N.  C.  408,  49 
S.  E.  891;  but  only  as  against  one  showing  no  better  title.  Stone  r.  Mc- 
Nealey,  59  Mo.  Ap.  396.  Title  once  shown  is  presumed  to  continue,  Mc- 
Afee V.  Montgomery,  21  Ind.  Ap.  190,  51  N.  E.  937.  If  part  of  the  goods 
of  plaintiff  are  found  in  possession  of  defendant  shortly  after  the  loss 
thereof,  the  jury  may  infer  that  defendant  found  and  appropriated  all  of 
them,  Eddings  v.  Boner.  1  Ind.  Ter.  173.  38  S.  W.  1110.  In  the  absence 
of  evidence  to  the  contrary  it  may  be  presumed  that  the  goods  are  of 
the  same  value  at  the  date  of  the  trial  as  when  replevied,  Monday  r. 
Vance,  Te.x.  Civ.  Ap.,  51  S.  W.  346.  Acceptance  of  an  assignment  for 
creditors  is  presumed.  Rowland  v.  Hewitt,  19  Ills.  Ap.  450.  Where 
the  answer  is  not  in  the  record,  the  court  will,  in  support  of  the  judg- 
ment against  the  sheriff,  presume  that  he  justified  under  process,  Keane 
V.  Munger,  52  Mo.  Ap.  060.  Where  the  goods  are  taken  by  the  officer 
on  the  writ  of  replevin,  the  presumption  is  they  were  taken  from  the 
defendant,  Pitts  Works  v.  Young.  6  S.  D.  557,  62  N.  W.  432. 

Burden  of  Proof. — Plaintiff  has  the  burden  of  proving  all  the  ma- 
terial allegations  of  his  complaint.  Wilhelm  v.  Scott,  14  Ind.  Ap.  275, 
40  N.  E.  537.  42  N.  E.  827;— his  title,  Cooper  v.  Bakeman.  32  Me.  192; 
Haveron  r.  Anderson.  3  N.  D.  540.  58  N.  W.  340;  St.  John  i'.  Swanback, 
39  Neb.  841.  58  N.  W.  288.  And  it  is  not  sufficient  merely  to  establish 
facts  which,  if  he  were  the  owner,  would  entitle  him  to  possession, 
Johnson  v.  Eraser.  2  Idaho.  404,  18  Pac.  48.  That  defendant  founds 
his  claim  upon  a  charge  of  fraud  in  the  transaction  by  which  plaintiff's 
title  is  derived,  does  not  change  the  rule.  Love  v.  Hudson.  24  Tex. 
Civ.  Ap.  377,  59  S.  W.  1127.  Plaintiff  is  required  to  show  his  right  to 
possession;  defendant  is  not  required,  in  order  to  defeat  tlie  attion. 
to  show  any  interest  in  himself.  Jenkins  v.  Mitchell,  40  Neb.  604.  59 
N.  W.  90.  Plaintiff  must  identify  the  particular  goods  to  which  he  is 
entitled,  Schwelnfurth  v.  Matson.  37  Ills.  Ap.  62.  He  must  show  a 
wrongful  detention  by  defendant,  Morgan  r.  Jackson.  32  Ind.  Ap.  169, 
69  N.  E.  410.  Even  though  defendant  has  pleaded  a  lien  in  connoction 
with  the  general  denial,  the  burden  still  ri'sts  upon  the  plaintirr  to 
prove  that  the  detention  is  wrongful,  Dodd  r.  Wllllanis  SniltliKon  Co.,  27 
Wash.  89,  67  Pac.  352.  On**  defendant  idi-adi-d  that  be  whh  a  partner 
with  plaintiff,  tli.it  the  goods  belonged  to  the  linn,  and  tliiit  as  a  partnor 
he  sold  them  to  his  co-defendant.  Held,  thiH  defetiHe  might  liave  been 
made  under  the  general  iHHue,  and  the  burden  of  proof  remained  with 
the  plaintiff.  Howntain  i'.  Ray,  31  Tex.  Civ.  Ap.  29S.  71  S.  W.  758.  Even 
though  the  defendant  pleadH  an  afflrniutlve  plea.  It  Ktlll  devolvcH  on  tho 


588  THE  LAW  OF  REPLEVIN. 

plaintiff  to  establish   his  exclusive   right,  Jenl<ins  v.  Mitchell,  supra; 
Johnston   v.   McCart,   24   Wash.   19.   63   Pac.   1121.     Where  plaintiff  al- 
leges fraud  in  the  purchase  of  the  goods,  and  defendant  is  a  stranger 
to  the   transaction,    (1),   the  plaintiff  has  the  burden  of  proving  the 
fraudulent    intent    of    the    original    purchaser;     (2),    the    defendant 
has  then  the  burden  of  proving  payment  of  a  consideration;    (3),  the 
burden   of  proving  notice   of   the   fraud    to   defendant  anterior   to   his 
purchase,  then  shifts   to  the   plaintiff,  Talcott  v.   Rose.  Tex.   Civ.   Ap. 
64  S.   W.   1009;    and  see  Hogan  v.  Detroit  Co.,   Mich.   103,  N.  W.  543. 
Where  plaintiff  relies  upon   a  sale  from   a  former  owner,  under  exe- 
cution  against  whom    the   defendant   has   seized   the   goods,   the   bur- 
den   is   upon   the   plaintiff   throughout;    he   must  show   a  valid   sale; 
the   burden   is   not   upon   the   defendant   to   prove   it   invalid,   Gallick 
V.    Bordeaux,    31    Mont.    328,    78    Pac.    583.      But    see    Williamson    v. 
Finlayson,  Fla.,  38  So.  50.     That  plaintiff  is  the  owner  and  defendant 
in  possession  may  raise  the  inference  that  such  possession  is  wrong- 
ful, but  it  does  not  change  the  burden   of  proof,  Morgan  v.  Jackson, 
32  Ind.  Ap.  169,  69  N.  E.  410.     Plaintiff  has  the  burden  of  proving  the 
identity  of  the  goods  replevied  with  those  described  in  the  mortgage 
under  which  he  claims,  Boggs  v.  Stanky,  13  Neb.  400,  14  N.  W.  392; 
Russell  V.  Amundson,  4  N.  D.  112,  59  N.  W.  477;  Myers  v.  Van  Norman, 
87  Ills.  Ap.  500;    Truss  v.  Byers,  137  Ala.  509,  34   So.   616;   Martin  v. 
Le  San,  Iowa.  105  N.  W.  996.     Plaintiffs  relied  upon  a  chattel  mortgage 
of  an  engine  manufactured  by  them;    the  mortgage  was   executed   in 
Wisconsin,  the  suit  was  brought  in  North  Dakota;  the  defendant  denied 
the  allegations  of  the  complaint  "  except  that  said  engine  is  now  in 
possession   of  defendant."     Held,  to  put  in   issue,  both   the  execution 
of  the  mortgage  and  the  identity  of  the  engine  in  defendant's  posses- 
sion with  the  engine  described  in  the  mortgage;    and  held  there  was 
no  presumption  of  identity,  Russell  v.  Amundson,  supra.    Mere  identity 
in  the  color  and  age  of  animals  in  possession  of  defendants  with  those 
described  in  the  mortgage,  and  the  fact  that  defendant  obtained  them 
from    the    mortgagor,    nearly    three    months    after    the    mortgage    was 
executed,   is  not  sufficient,   Kellogg  v.   Anderson,   40   Minn.   207,   41   N. 
W.  1045.     Plaintiff  claiming  under  a  chattel  mortgage  not  yet  matured, 
and  which  provides  that  the  mortgageor  shall  retain  possession  until 
default   made   in   payment,   or    in    other   express   conditions,   has    the 
burden  of  proving  the  violation  of  some  of  these  conditions.  Id.    Defend- 
ant must  recover  on  the  strength  of  his  own  title;   if  he  claims  under 
a  chattel   mortgage  he  must  show   that  the  mortgageor  had   at  least 
possession  of  the  mortgage  chattels  at  the  date  of  the  mortgage,  Her- 
man V.  Kneipp,  59  Neb.  208,  80  N.  W.  816.     Where  defendant  pleads  a 
chattel  mortgage,  and  plaintiff  replies  accord  and  tender  of  satisfaction, 
he  has  the  burden  of  proving  his  reply,  Westover  v.  Van  Doran,  29  Neb. 
652,  46  N.  W.  47.     Defendant  claiming  under  a  chattel  mortgage  has 
the  burden,  of  proving  the  identity  of  the  mortgaged  chattels  with  those 
claimed  by  the  plaintiff.  First  National  Bank  v.  Wood,  124  Mo.  72,  27  S. 
W.  554.    Where  defendant  relies  upon  an  estoppel  he  must  prove  the  facts 


PLEADING.  589 

raising  the  estoppel.  Delaney  v.  Canning,  52  Wis.  266,  8  N.  W.  897. 
If,  the  defense  being  non  detention,  it  appears  that  defendant  was  in 
possession  of  the  goods  next  previous  to  the  institution  of  the  suit, 
the  burden  is  upon  it  to  show  that  it  had  parted  with  such  possession 
before  the  institution  of  the  suit,  Nichols  v.  Dodson  Co.,  85  Mo.  Ap. 
584.  Where  the  evidence  shows  that  defendant  found  a  waist  belt 
containing  a  sum  of  money,  and  that  some  of  the  money  was  afterwards 
found  in  possession  of  defendant,  he  has  the  burden  of  dispelling  the 
inference  that  he  obtained  it  all,  Eddings  r.  Boner,  1  Ind.  Ter.  173, 
38  S.  W.  1110.  The  intervener  has  the  burden  of  proving  his  rights  as 
pleaded,  Redman  v.  Ray,  123  N.  C.  502,  31  S.  E.  831.  One  who  assails 
a  transaction  as  fraudulent  has  the  burden  of  proving  the  fraud,  Foster 
V.  Hall,  12  Pick.  89;  Wyatt  v.  Freeman,  4  Colo.  14.  Where  goods  have 
been  obtained  by  fraud,  or  have  been  transferred  when  subject  to  some 
secret  lien,  or  in  violation  of  a  trust  upon  which  the  p-operty  is  held, 
and  the  party  in  possession  defends  as  a  bona  fide  purchaser,  there  is, 
as  has  been  seen  above,  some  discord  in  the  authorities  as  to  the  ques- 
tion upon  whom  rests  the  burden  of  proving  the  circumstan-es  of  the 
second  purchase.  Upon  sound  principle  it  would  seem  that  this  burden 
ought  to  rest  upon  the  one  asserting  the  character  of  bona  fide  pur- 
chaser; (1),  because,  if  the  pleadings  are  properly  framed  the  allega- 
tion of  bona  fide  purchase  comes  from  this  party;  and  (2),  especially 
because  the  matter  is  peculiarly  within  the  knowledge  of  such  party. 
And  this  seems  to  accord  with  the  current  of  authority,  Boone  v.  Chiles, 
10  Pet.  177,  9  L.  Ed.  388;  Wyer  v.  Dorchester  Bank,  11  Cush.  51;  Bar- 
rett V.  Warren,  3  Hill,  348;  Thamling  r.  Duffey,  14  Mont.  5C7,  37  Pac. 
363;  Shirk  v.  Neible,  156  Ind.  66.  59  N.  E.  2S1.  83  Am.  St.  150;  Ulrich 
V.  McConaughy,  63  Neb.  10,  88  N.  W.  150;  Heffley  v.  Hunger,  54  Neb. 
776,  75  N.  W.  53;  Salisbury  v.  Barton,  63  Kans.  552,  66  Pac.  618;  Keim 
V.  Vette,  167  Mo.  389,  67  S.  W.  223. 

Many  of  these  cases  refer  to  the  transfer  of  negotiable  paper;  but  it 
would  seem  that  in  view  of  the  policy  of  the  law  to  give  free  currency 
to  negotiable  paper,  the  rule  in  relation  to  chattel  property  should  be 
certainly  not  less  strict  than  that  which  controls  in  the  case  of  bills 
of  exchange  and  promissory  notes.  But  it  was  held  In  Singer  Co  r. 
Nash,  70  Vt.  434,  41  Atl.  429,  that  where  an  ofl[lcer  justifies  under  an 
attachment  against  a  defendant  who  claims  a  secret  lien,  and  which 
by  the  statute  is  subordinated  only  to  claims  of  purchaser.s  and  credi- 
tors without  notice,  the  officer  has  the  burden  of  proving  that  Iho 
creditor  whom  he  represents  attached  without  notice  of  such  lien;  and 
iu  flanchctt  v.  Buckley.  27  Ills.  Ap.  l.')9,  that  where  the  pie. igfi*  of  u  wure- 
house  receipt  has  a'lvaneed  money  upon  the  faith  of  the  pledge,  whoever 
would  asHall  it  for  frau<l  In  the  purchjise  of  the  goods  by  the  pledgor, 
has  the  burden  of  proving  that  the  pledgee  took  with  notice  of  such 
fraud.  And  in  Brownell  v.  Twyman,  68  Ills.  Ap.  67,  ttiut  the  burden  of 
showing  that  a  purchaser  from  the  tenant  took  with  notice  uf  a  Ilea 
for  rentK,  is  upon  the  landlord.  And  In  Krlsi  hninn  r.  Mnndel,  26  .Misc. 
820,  56  N.  Y.  Sup.  1029.  that  where  one  wuji  put  in  poSHesulou  of  goodH 


590  THE  LAW  OF  REPLEVIN. 

•with  authority  to  sell,  replevin  could  not  be  maintained  against  one 
holding  under  him,  without  negative  proof  that  such  person  was  not 
a  bona  fide  purchaser.  And  see  Pritchard  v.  Hooker,  Mo.  Ap.  90,  S.  W. 
415.  One  claiming  that  a  chattel  mortgage  relied  upon  by  his  adversary 
is  satisfied  by  damages  sustained  by  breach  of  warranty  upon  sale  of 
the  mortgage  goods  has  the  burden  of  proving  the  amount  of  his 
damages,  Aultman  Co.  v.  Richardson,  21  Ind.  Ap.  211,  52  N.  E.  86. 
Where  part  of  the  goods  are  not  exempt,  the  one  claiming  the  exemp- 
tion must  show  to  what  goods  it  extends,  Hilman  v.  Brigham,  117  la.  70, 
90  N.  W.  491.  Where  the  real  controversy  is  whether  defendant  was 
entitled  to  apply  the  proceeds  of  mortgaged  chattels  to  discharge  a 
debt  not  named  in  the  mortgage,  so  that  the  mortgage  remains  un- 
satisfied, the  burden  of  proof  as  to  this  is  on  the  defendant.  First 
National  Bank  v.  Parkhurst,  54  Kans.  155,  37  Pac.  1001.  If,  where 
defendant  has  justified  the  taking  and  detention  of  the  goods,  under  a 
valid  tax,  plaintiff  desires  to  proceed  for  an  unlawful  conversion  by 
sale,  the  burden  rests  on  him  to  show  the  unlawfulness  of  the  officer's 
proceedings  subsequent  to  the  taking,  Enos  v.  Bemis,  61  Wis.  656,  21 
N.  W.  812. 

Competency  and  Relevancy. — The  testimony  is  to  be  directed  to  the 
rights  of  the  parties  as  they  existed  at  the  institution  of  the  action, 
Fischer  v.  Burchall,  27  Neb.  245,  42  N.  W.  1034,  Evidence  which  is  rele- 
vant to  any  one  phase  of  the  litigation,  is  admissible,  Huthmacher  v. 
Lowman,  66  Ills.  Ap.  448.  Where  goods  were  deposited  with  defendant, 
and  the  question  is  with  what  authority  and  for  what  purpose,  the  de- 
fendant may  show  all  his  transactions  and  conversations  bearing  upon 
the  subject.  He  may  show  an  agreement  that  the  goods  should  be  sent 
to  a  particular  firm  in  New  York,  and  the  letters  received  from  that 
firm.  Van  Aukin  v.  O'Connor,  50  Mich.  374,  15  N.  W.  516.  Defendant, 
sued  for  certain  stolen  coupons,  and  who  defended  upon  the  ground  that 
he  received  them  from  another  merely  for  negotiation,  and  had  paid  to 
his  principal  the  proceeds,  without  notice  of  the  theft,  produced  a 
letter  in  which,  as  he  testified,  he  received  certain  of  the  coupons. 
Held,  that  the  letter  was  admissible  without  proof  of  the  signature, 
Spooner  v.  Holmes,  102  Mass.  503.  Plaintiff  may  put  in  evidence  a  bill 
of  sale,  between  those  not  parties  to  the  suit,  under  which  he  claims 
title  to  the  goods,  Beimuller  v.  Schneider,  62  Md.  547.  Where  usury  by 
plaintiff  is  pleaded  he  may  be  interrogated  as  to  the  rate  of  interest  usu- 
ally charged  in  his  business,  Kreibohm  v.  Yancy,  154  Mo.  67,  55  S.  W.  260. 
In  determining  the  increase  of  live-stock,  during  a  period,  the  average 
increase  during  the  same  years  may  be  considered,  Mann  v.  Arkansas 
Co.,  24  Fed.  261.  Replevin  for  wheat  raised  upon  land  formerly  be- 
longing to  defendant,  and  to  which  plaintiff  had  acquired  title  by  the 
foreclosure  of  a  mortgage.  The  defendant  was  permitted  to  testify 
that  there  were  original  and  renewal  mortgages  on  the  land;  that 
plaintiff  had  enforced  both,  and  by  fraud  had  obtained  judgments 
against  him  for  double  the  amount  due,  that  he  had  robbed  defendant 


PLEADING.  591 

of  everything.  Held  erroneous  and  grossly  prejudicial,  Jordan  v.  John- 
son. 1  Kans.  Ap.  65G,  42  Pac.  415. 

"UTiere  the  plaintiff  claims  under  a  mortgage,  the  mortgage  Is  ad- 
missible, without  any  evidence  of  recording,  the  defendant  not  being 
shown  to  be  either  creditor,  mortgagee  or  purchaser  from  the  mort- 
gageor.  Fuller  v.  Brownell,  4S  Neb.  145,  67  N.  W.  6.  Plaintiff  claimed 
under  a  mortgage  executed  by  Silver  in  the  name  of  Silver  &  Smith. 
Held,  a  subsequent  sale  by  Smith  to  Silver,  of  all  interest  in  the  firm 
property  was  admissible  in  behalf  of  plaintiff,  Id. 

In  replevin  for  logs  wrongfully  cut,  the  defendant  to  shield  himself 
from  exemplary  damages,  may  show  that  he  claimed  the  land  under 
a  deed,  in  good  faith.  The  deed,  though  subsequently  annulled,  is 
admissible  on  the  question  of  good  faith,  Acree  v.  Bufford,  80  Miss. 
565,  31  So.  898.  The  record  of  a  decree  awarding  an  injunction  against 
a  third  person  is  admissible  against  defendant,  who  it  is  shown  had 
been  acting  in  concert  with  such  third  person  in  disturbing  the  plain- 
tiff's possession  of  lands  upon  which  the  crops  in  controversy  were 
grown.  Hanlon  r.  Goodyear,  103  Mo.  Ap.  416.  77  S.  W.  481.  Plaintiff 
claimed  that  the  goods  were  forcibly  taken  from  him;  defendants,  that 
they  were  delivered,  pursuant  to  a  sale.  Evidence  that  at  the  same  time 
defendants  possessed  themselves  of  other  properties  of  plaintiff,  is 
competent,  upon  the  question  of  sale  or  no  sale,  Younglove  v.  Knox, 
44  Fla.  743,  33  So.  427.  In  replevin  for  a  mare,  the  plaintiff  may  testify 
that  the  mare  has  produced  colts,  that  he  owned  them,  had  sold  some 
of  them,  and  had  one  taken  in  possession,  and  that  defendant  had  never 
claimed  them  nor  had  possession  of  any  of  them — as  tending  to  show 
title  to  the  mare.  Pacey  v.  Powell,  97  Ind.  371.  Exchange  of  horses, 
with  a  warranty  that  the  animal  traded  to  plaintiff  was  gentle  and  a 
good  driver;  plaintiff  sought  to  rescind  the  falsity  of  the  warranty, 
held,  that  defendant  might  prove  by  one  who  came  into  possession  of 
the  animal  a  week  after  the  attempted  rescission,  that  be  drove  the 
animal  and  it  was  sound,  gentle,  and  in  every  way  within  the  warranty. 
Herzberg  v.  Sachse,  60  Md.  426.  Where  the  question  was  as  to  the  au- 
thenticity of  certain  marks  upon  a  stock  of  goods,  and  whether  these 
were  the  original  cost  marks,  a  witness  of  long  experience  as  a  mer- 
chant and  who  had  made  an  Invoice  of  the  stock,  was  held  competent 
to  give  his  opinion  upon  this  question.  Sylvester  v.  Ammons.  126  Iowa. 
140,  101  N.  W.  782.  It  appearing  that  the  marks  were  "  fresh,"  It  wa.s 
held  admissible  to  prove  that  the  goods  were  old.  Id.  Also  that  the 
witness  was  competent  to  [jpove  the  difference  between  the  nninunt  of 
the  Invoice  made  by  him  an<l  the  wholesale  prh'C,  Id.  Murka  u|)on  logs 
habitually  used  by  the  ownerH  for  Idenliflcatloii.  may  be  r<'ferre<l  to 
and  testified  of  as  evlden<e  of  ownerslilp,  though  not  shown  to  hiivo 
been  recorded  In  another  state  from  which  the  Iorb  oHcaped,  an  required 
by  the  Htatuto  of  that  stale.  St.  Paul  Co.  r.  Kemp.  1(»3  N.  W.  ifiM. 
Evidence  that  plaintiff  Ih  In  the  habit  of  conducting  buKineHH  In  a  dlH- 
credltable  manner  Ih  Incompetent,  and  ground  for  a  new  trial,  Gum- 
berg  V.  Goo'lHleln,  9.'j  Ap.  Dlv.  lol,  88  N.  Y.  Hup.  423.     11  HuumH  Incuni- 


592  THE  LAW  OF  REPLEVIN. 

petent  to  prove,  aliunde  a  mortgage  of  cattle,  that  mortgagee,  In  the 
execution  of  the  mortgage  had  not  in  mind  the  particular  cattle  de- 
manded in  replevin.  First  Natl.  Bank  v.  Ragsdale.  171  Mo.,  168,  71  S.  W. 
178.  Plaintiff  should  not  be  permitted  to  put  in  evidence  a  mortgage 
executed  by  the  defendant  to  a  stranger,  without  proof  of  a  superior 
lien  in  himself;  or  that  the  debt  has  been  satisfied,  or  that  the  other 
things  included  in  the  mortgage  were  sufficient  to  satisfy  it,  Schnabel 
r.  Thomas,  98  Mo.  Ap.  197,  71  S.  W.  1076.  The  officer's  return  of  the 
writ  is  evidence,  and  as  it  seems  the  only  competent  evidence,  as  to 
which  of  two  like  bonds  was  given,  in  the  particular  cause,  McManus  v. 
Donohue,  175  Mass.  308,  56  N.  E.  291.  The  officer's  return,  as  to  the 
things  taken  cannot  be  contradicted  even  by  defendant,  Rowell  v. 
Klein,  44  Ind.  290.  The  officer  should  not  be  permitted  to  falsify  his 
own  return,  Carraway  v.  Wallace,  Miss.  17  So.  930.  Where  posses- 
sion of  the  chattels  at  a  day  certain  is  the  matter  in  issue,  it  is 
not  competent  for  the  witness  to  depose  that  the  plaintiff  had  pos- 
session, Moore  i'.  Shaw,  1  Kans.  Ap.  103,  40  Pac.  929.  "  Have  you 
parted  with  the  title,"  is  a  question  of  law  and  improper  to  be  pro- 
pounded to  plaintiff,  Hopkins  v.  Davis,  23  App.  Div.  235,  48  N.  Y. 
Sup.  745.  "  Who  was  the  owner  of  the  property  "  not  an  improper 
question.  Nelson  v.  Mclntyre,  1  His.  Ap.  603.  A  witness  (party) 
should  not  be  allowed  to  prepare  in  advance  a  schedule  of  the  several 
articles  replevied,  setting  down  the  value  of  each,  and  use  that  as 
testimony  upon  the  trial  to  establish  the  value,  Werner  v.  Graley,  54 
Kans.  383,  38  Pac.  482.  Nor  to  read  from  bills  and  books  the  cost 
in  other  cities  of  articles  similar  to  those  replevied.  The  question 
is  the  value  at  the  place  of  the  taking,  Werner  v.  Graley,  supra.  A 
mere  offer  to  prove  material  facts,  not  specifying  by  whom,  or  by 
what  kind  of  evidence,  may  properly  be  rejected,  Malone  v.  Stickney, 
88  Ind.  594.  An  objection  to  evidence  offered  that  it  is  irrelevant,  is 
sufficient,  where  the  evidence  goes  to  establish  a  defense  not  alleged. 
Baker  v.  Mclnturff,  49  Mo.  Ap.  505.  Witnesses  are  not  permitted  to 
testify  to  their  motives,  belief  or  intentions,  McCormick  v.  Joseph, 
77  Ala.  236.  But  one  seeking  to  disaffirm  a  sale  upon  credit  because 
obtained  by  a  previous  false  statement  of  the  purchaser,  may  testify 
that  in  the  particular  sale  he  relied  upon  the  purchaser's  statements, 
Grever  v.  Taylor,  53  O.  St.  621.  42  N.  E.  829.  Defendant  claiming 
to  have  purchased  goods  in  reliance  upon  previous  statements  of 
plaintiff,  as  to  the  title,  must  prove  as  a  fact  that  he  relied  upon  such 
statements;  and  he  may  prove  it  by  his  own  oath,  Strasser  v.  Gold- 
berg, 120  Wis.  621,  98  N.  W.  554.  Statute  that  "  Parties  *  *  *  in 
whose  behalf  an  action  is  prosecuted  against  an  administrator  upon  a 
claim  against  the  estate  of  decedent,  as  to  any  matter  of  fact  occur- 
ring before  the  death  of  such  deceased  person,"  should  not  be  wit- 
nesses. Where  the  plaintiff  claimed  as  the  lessor  of  decedent  and  the 
defendants  as  mortgagees  of  decedent,  the  administrator  of  the  dece- 
dent being  unnecessarily  made  a  party,  the  court  said  the  claim  as- 
serted was  solely  against  the  other  defendants,  that  the  question  was 


PLEADING.  593 

as  to  the  right  of  possession,  and  the  plaintiff  was  a  competent  wit- 
ness in  his  own  behalf,  Cunningham  r.  Stoner,  10  Idaho,  549,  79  Pac. 
228. 

Negative  testimony  may  be  considered,  where  from  the  nature  of 
things  no  other  is  attainable.  Plaintiff's  witnesses  deposed  that  cattle  of 
certain  brands  were  seen  at  certain  times  and  places;  witnesses  for  de- 
fendant, who  were  at  the  places,  at  the  times  spoken  of.  saw  no  such 
cattle.  Held,  the  testimony  of  the  latter  were  entitled  to  equal  con- 
sideration with  the  former,  Mann  v.  Arkansas  Co.,  24  Fed.  261. 
A  witness  was  asked  whether  any  person  had  authority  from  him  to 
sell  any  machinery,  without  having  first  submitted  a  written  order, 
the  purpose  being  to  negative  such  authority;  It  was  held  competent, 
though  calling  for  the  conclusion  of  the  witness;  because  "there  is 
often  no  other  way  to  prove  a  negative."  Peerless  Co.  v.  Gates,  Gl 
Min.  124,  63  N.  W.  2G0.  Parol  evidence  is  not  admissible  to  show  that  a 
merchant  had  agreed  to  make  advances  to  a  planter  in  addition  to  those 
set  down  in  the  mortgage  which  is  the  ground  of  action.  Carraway  v. 
Wallace,  Miss.,  17  bo.  930.  Parol  agreement  may  be  proven  by  parol, 
though  it  involves  the  terms  of  a  written  document,  not  produced  or 
accounted  for,  Peeples  r.  Warren,  51  S.  C.  560,  29  S.  E.  659.  Notwith- 
standing a  bill  of  items,  showing  a  purchase,  is  transmitted  by  a 
wholesale  merchant  to  a  retail  merchant,  with  each  shipment,  during 
a  long  course  of  dealing,  it  may  be  shown  that  the  transaction  was 
Jn  fact  a  bailment  for  a  sale  on  commission;  but  the  evidence  must 
clearly  preponderate.  Chapman  v.   Kerr,  80  Mo.   158. 

In  replevin  for  goods  alleged  to  have  been  sold  conditionally  by  a 
firm  to  which  plaintiff  had  succeeded,  the  order  book  of  the  firm 
showing  an  entry  which  a  member  of  the  firm  testified  was  copied 
from  an  order  slip  in  his  own  handwriting,  setting  forth,  under  the 
name  of  defendant,  a  portion  of  the  articles,  and  the  words  "  on  con- 
tract," is  admissible,  in  connection  with  evidence,  that  on  the  plaintiff's 
books,  these  words  always  import  a  conditional  sale,  Norman  Co.  i'. 
Ford,  77  Conn.  4<;i.  59  Atl.  499.  No  writing  is  necessary  to  effect  the 
transfer  of  chatteLs,  Bienmller  r.  Schneider,  62  Md.  547.  Plaintiff  claim- 
ing a  stock  of  goods  may  put  in  evidence  the  la.st  invoice  taken,  though 
more  than  a  year  old,  accompanied  by  evidence  of  goods  purchased 
since,  and  the  amount  of  sales; — because  this  is  the  best  evidence  in 
the  power  of  plaintiff.  Grinnell  v.  Young,  41  MIn.  180,  42  N.  W.  929. 
Replevin,  plaintiff  <'laiming  under  a  chattel  mortgage  executed  by  one 
F.  A  bill  of  sale  by  F.  to  defendant  was  held  adinlKKlble  evidence  for 
the  plaintiff,  without  any  evidence  of  its  acceptance  l)y  defendant; 
there  being  evidence  of  delivery  to  hini,  and  no  explanation  being 
offered  on  his  part,  and  there  being  attached  an  Inventory  of  U\c> 
goods  Hlgned  by  defentlant.  The  bill  of  Kale  referring  to  the  Inventory. 
It  becami?  part  of  it,  and  the  offer  In  evidence  of  the  1)111  of  Hale  merely, 
carrleH  with  It,  Into  the  cuho,  the  Inventory.  Knochu  v.  Perry.  90  Mo. 
Ap.  483.  An  Inventory  of  the  furniture  of  a  hotel,  verified  by  the  ono 
who  made  It  aH  true  and  correc  I,  may  be  received  In  evidence  an  part 
38 


694  THE  LAW  OF  REPLEVIN. 

of  his  testimony,  though  he  is  not  able  to  enumerate  the  articles  from 
recollection;  so  of  a  like  inventory  made  by  another,  which  the  witness 
subsequently  verified,  Bourda  v.  Jones,  110  Wis.  52,  85  N.  W.  671.  When 
the  statute  provides  for  filing  and  recording  of  an  inventory  of  a 
married  woman's  separate  property,  and  declares  such  inventory  prima 
facie  evidence  of  the  wife's  title,  the  inventory  must  be  admitted  in 
evidence,  when  the  goods  are  claimed  by  the  wife,  and  are  of  the 
same  general  kind  as  a  portion  of  what  is  in  question.  Evidence 
aliunde  may  be  received  to  show  the  identity  in  fact,  Shumway  v. 
Leakey,  67  Calif.  458,  8  Pac.  12.  Assessment  lists  made  by  the  husband, 
without  the  wife's  knowledge  do  not  bind  her;  nor  even  if  made  with 
her  knowledge,  unless  it  appears  she  intended  thereby  to  allow  him 
to  assert  title.  Stanfield  v.  Stiltz.  93  Ind.  249.  The  assessment  roll 
showing  that  goods  were  assessed  as  the  property  of  the  husband  is  not 
competent  as  against  the  wife,  in  the  absence  of  evidence  showing 
knowledge  on  her  part  of  sue  assessment.  Shumway  v.  Leakey,  67 
Calif.  458.  8  Pac.  12.  The  tax  rolls  of  the  city  are  not  admissible  to 
show  that  plaintiff  was  not  in  possession  of  so  much  money  as  he 
claimed  to  have  paid  for  his  purchase.  Tuckwood  v.  Hanthorn,  67 
Wis.  326.  30  N.  W.   705.     But  his  statements  to  the  assessor  are.  Id. 

Failure  to  return  property  for  taxation  is  a  circumstance  to  be 
considered,  in  determining  whether  the  party  so  defaulting  is  the 
owner.  Kastl  v.  Arthur,  135  Mich.  278,  97  N.  W.  711.  Assessment 
lists  are  competent  to  prove  property  in  the  thing  listed,  McAfee  v. 
Montgomery,  21  Ind.  Ap.  196,  51  N.  E.  957,  citing  Painter  v.  Hall,  75 
Ind.  208;  Burket  v.  Pheister,  114  Ind.  503,  16  N.  E.  813;  Towns  v. 
Smith,  115  Ind.  480,  16  N.  E.  811.  But  not  to  prove  value.  Id.  citing 
Cincinnati  Co.  v.  McDougall,  108  Ind.  179.  8  N.  E.  571.— Not  admissible* 
to  prove  either  title  or  value.  Carper  v.  Risdon,  19  Colo.  Ap.  530,  76  Pac. 
744. 

A  party  cannot  put  in  his  tax  schedule,  showing  the  listing  of  the 
goods  for  taxation.  This  would  be  to  allow  him  to  make  his  own  decla- 
rations evidence  in  his  own  favor.  Schenck  v.  Sithoff,  75  Ind.  485. 
Where  a  particular  conveyance,  or  transfer,  is  assailed  by  a  creditor, 
as  fraudulent,  he  may  prove  other  acts  of  fraud  of  the  same  grantor 
though  not  shown  to  be  within  the  knowledge  of  the  grantee  in  the 
particular  conveyance  assailed,  Foster  v.  Hall,  12  Pick.  89.  So  where 
vendor  seeks  to  rescind  a  sale  for  fraud  of  the  purchaser,  in  the  pur- 
chase, other  acts  of  fraud  which  are  shown  to  be  part  of  a  general 
scheme  of  fraud,  are  admissible,  in  evidence.  Huthmacher  v.  Lowman, 
66  Ills.  Ap.  448.  Not  so  as  to  disconnected  frauds,  Hanchett  v.  River- 
dale  Co.,  15  Ills.  Ap.  57.  Where  the  plaintiff  seeks  to  rescind  a  sale  of 
goods  on  the  ground  of  fraud,  evidence  tending  to  establish  his  com- 
plaint is  admissible,  though  it  may  tend  to  convict  defendant  of  another 
similar  fraud,  Parrish  v.  Thurston,  87  Ind.  437.  Where  frauds  in 
the  purchase  of  property  is  alleged,  evidence  of  other  like  frauds,  by 
the  same  parties,  at  or  near  the  same  time,  is  admissible.  Lincoln  v. 
Claflin,  7  Wall,  132,  19  L.  Ed.  106.    And  declarations  of  each  of  several 


PLEADING.  595 

parties,  made  while  they  are  engaged  in  a  common  design  are  admissible 
against  the  other,  Id. 

Where  fraud  in  a  conveyance  or  transfer  is  alleged,  the  acts  and  dec- 
larations of  the  grantor,  prior  thereto,  are  admissible  to  show  that  the 
transaction  was  fraudulent  as  to  him;  such  evidence  however,  does 
not  prejudice  the  purchaser;  knowledge  on  his  part  of  such  fraudu- 
lent intent  of  the  bargainor  must  be  proved  by  other  evidence.  Bridge 
V.  Eggleston,  14  Mass.  245.  The  reports  of  a  commercial  agency,  of 
statements  made  by  a  merchant,  are  not  admissible  to  prove  fraud  in 
the  subsequent  purchase  of  goods  by  the  merchant,  upon  credit.  The 
person  to  whom  the  statement  was  made  must  be  produced,  Cowen  r>. 
Bloomberg,  66  N.  J.  L.  385,  49  Atl.  451.  In  an  action  to  recover  goods 
obtained  by  alleged  fraudulent  representations,  statements  made  by 
the  buyer  to  the  agents  of  the  commercial  agencies,  and  which  were 
forwarded  to  the  agency,  entered  on  their  books  and  communicated  to 
sellers,  to  govern  them  in  their  dealings,  are  admissible  in  connection 
with  evidence  of  their  falsity  and  with  evidence  that  the  goods  were 
sold  on  the  faith  of  these  representations,  Salisbury  v.  Barton,  63  Kans. 
552,  66  Pac.  618.  So,  in  the  same  case,  held  that  statements  made  at 
another  time  by  the  buyers,  though  never  coming  to  the  knowledge  of 
the  sellers,  were  admissible  to  show  the  authenticity  of  the  statements 
relied  on  by  the  sellers,  Id. 

Where  a  merchant  to  obtain  goods  upon  credit  makes  a  written  state- 
ment of  his  assets  and  liabilities,  he  will  not  be  allowed  to  testify  that 
he  did  not  think  or  intend  to  answer  the  questions  as  to  his  liability, 
and  had  not  read,  nor  understood  the  writing,  Gulledge  v.  Slayden,  etc., 
Co.,  75  Miss.  297.  22  So.  952. 

Where  defendant,  justified  under  an  attachment  against  the  hus- 
band of  plaintiff,  plaintiff  may  on  cross  examination  be  interrogated 
as  to  where  she  obtained  the  means  with  which  she  purchased  the 
goods,  or  the  property  traded  for  them,  how  she  obtained  such  prop- 
erty so  exchanged,  and  as  to  her  own  and  her  husband's  means,  as 
well  as  his  liabilities,  at  the  time  of  the  alleged  purchase,  Marrinan  v. 
Knight.  7  Okla.  419,  54  Pac.  656.  The  plaintiff  claimed  under  a  »)il!  of 
sale  by  his  son;  the  intervener  was  the  wife  of  the  son;  evidence  that 
the  bill  of  sale  was  not  subscribed  by  the  son  in  the  presence  of  the 
attesting  witness,  that  he  never  admitted  the  exectition  thereof,  that  the 
witness  subsf-ribed  her  nani<*  as  a  witness,  at  request  of  plaintifT. 
and  that  plaintiff  paid  nothing  for  the  bill  of  sale,  that  plaintiff  knew 
the  Hon  was  about  to  desert  his  wife,  and  assisted  him  wltl>  the  ex- 
penses of  his  Journey,  to  another  state,  are  clrcuniHtances  proper  for 
the  conHlderatlon  of  the  Jury,  Lawall  v.  I^awall,  150  I'a.  St.  C26.  24 
Atl.  289.  Replevin  for  goods  ulleKed  to  have  been  obtained  by  fraudu- 
lent miKrepreHentalionB  of  the  buyer's  flnan<'ial  (-nnditlon;  an  aHHlKn- 
ment  executed  by  the  defendant  for  the  lient-dt  of  credltorH,  after  hiK 
purchaHe  of  the  goods  In  controverHy,  Is  a<lnilHHlble  aicnlnHt  hini.  Noblu 
V.  Worthy.  1  Ind.  Tr-r.  458.  45  S  W.  137  In  an  action  to  re<-over  uoodH 
purchaiicd    In    fraud,   the   plalntiffH   were   permitted    to  Mhow   that    tho 


596  THE  LAW  OF  REPLEVIN. 

defendants  had  over-reached  and  defrauded  a  former  partner;  to  show- 
transactions  between  defendants,  entirely  disconnected  with  the  litiga- 
tion, by  which  such  third  persons  were  swindled,  and  defrauded;  that 
entries  in  defendants  books  were  fraudulently  changed,  after  the 
books  had  passed  to  a  receiver  (who  was  defendant);  that  defendants 
had  been  charged  with  embezzling  cotton  receipts  of  farmers,  their 
customers.  Held  all  this  was  incompetent,  and  prejudicial,  Levy  v. 
Lee,  13  Tex.  Civ.  Ap.  510,  36  S.  W.  309.  That  immediately  after  the 
purchase  of  the  goods,  the  buyer  threw  them  upon  the  market  to  be 
sold  at  auction,  agreeing  to  pay  double  the  ordinary  commission,  and 
with  a  probable  loss  of  twenty-five  per  cent  of  the  value,  in  considerar 
tion  of  receiving  a  considerable  advance  in  cash,  on  account,  from  the 
auctioneer,  is  not  admissible  as  evidence  of  fraud  in  the  purchase, 
where  the  buyer  had  executed  notes  for  the  price  secured  by  mortgage 
of  lands,  and  there  was  no  evidence  that  she  was  not  the  owner  of 
the  lands,  or  that  they  were  not  an  ample  security  for  the  debt,  Seldner 
V.  Smith,  40  Md.   602. 

Declarations  made  by  the  buyer  are  competent  as  against  an  officer 
representing  his  creditors,  to  prove  fraud  in  his  purchase,  Sommer  v. 
Adler,  36  Ap.  Div.  107,  55  N.  Y.  Sup.  483.  Defendant  purchased  goods 
on  credit;  replevin,  alleging  insolvency  and  intent  not  to  pay  for  them; 
the  value  of  the  good  will  of  defendant's  business  is  admissible  in  the 
question  of  solvency.  Id.  Kelty  assigned  a  stock  of  goods  for  the 
benefit  of  his  creditors;  the  assignee  sold  them  to  Baehr;  Baehr  bor- 
rowed the  amount  paid  from  Souffler  and  mortgaged  the  stock  to  secure 
it;  he  afterwards  sold  to  the  plaintiff;  defendant  levied  upon  the  goods 
under  execution  against  Kelty.  Evidence  was  given  that  Baehr's  pur- 
chase, and  his  sale  to  the  plaintiff,  was  made  in  pursuance  of  an 
arrangement  between  Baehr,  plaintiff  and  Kelty,  that  Kelty  was  to  fur- 
nish the  amount  to  be  paid  to  the  assignee,  and  have  the  stock  as  soon 
as  the  liens  were  discharged.  Held  evidence  that  Soufflers  had 
full  knowledge  of  this  arrangement  and  that  he  lent  the  money  really 
to  Kelty,  was  competent,  Gevers  v.  Farmer,  109  la.  468,  80  N.  W.  535. 
When  the  defense  is  that  plaintiff's  title  was  a  purchase  in  fraud  of 
creditors  of  the  seller,  plaintiff  may  be  asked  if  at  the  time  of  the 
purchase  he  knew  that  the  agents  through  whom  he  purchased  were 
in  the  business  of  buying  bankrupts'  stock,  for  the  purpose  of  cheat- 
ing their  creditors.     Smith  v.  Brockett,  69  Conn.  492,  38  Atl.  57. 

And  the  agent  may  be  asked  in  cross-examination  if  he  had  negoti- 
ated other  similar  purchases  for  plaintiff,  Id.  The  examination  of 
the  debtor  in  insolvency,  a  year  after  the  sale,  is  not  admissible,  as 
the  declaration  of  a  co-conspirator.  Such  declarations  are  admissible 
only  while  made  in  the  course  of  the  conspiracy.  Id.  But  the  record 
of  the  proceedings  had  in  the  insolvency  of  this  debtor,  in  another 
state,  than  that  of  the  trial,  being  properly  authenticated  under  the 
Act  of  Congress  are  admissible,  though  a  mere  informal  minute,  largely 
in  abbreviated  form,  is  kept.  Id.  When  the  cross-examination  of  plain- 
tiff raises  the  suspicion  that  the  purchase  under  which  he  claims  was 


PLEADING.  597 

colorable,  and  that  nothing  was  paid,  he  may  testify  as  to  where  he 
obtained  the  money  asserted  to  have  been  paid,  Tuckwood  v.  Hanthorn. 
67  Wis.  326,  30  N.  W.  705.  He  may  state  the  amount  of  the  inventory 
made  by  him  without  producing  it.  Id.  Where  plaintiff  claims  the 
goods  under  purchase  from  one  under  an  execution  against  whom 
defendant  seized  them,  and  the  contention  of  defendant  is  that  the  sale 
to  plaintiff  was  fraudulent,  part  of  a  note  executed  by  the  vendor  to 
the  plaintiff,  surrendered  at  the  time  of  the  sale,  and  destroyed  by  ven- 
dor, and  afterwards  picked  up  by  plaintiff,  is  admissible.  So  the  fact 
that  plaintiff  after  his  purchase  replenished  the  stock  from  time  to  time, 
Butler  V.  Howell,  15  Colo.  249,  25  Pac.  313.  Goods  were  replevied  from 
an  oflScer  who  took  them  under  attachment  against  a  former  owner. 
The  plaintiff  claimed  under  the  same  former  owner  by  bill  of  sale 
anterior  to  the  attachment.  Held  that  the  defendant  showing  a  con- 
tinued possession  in  the  attachment,  defendant  might  also  show  that 
the  demands  in  the  attachment  writ,  were  for  goods  sold  on  the  faith 
of  such  apparent  ownership  of  the  goods.  Talcott  v.  Crippen,  52  Mich. 
633.  18  N.  W.  392.  Where  plaintiff's  title  is  assailed,  as  in  fraud  of 
creditors,  he  may  be  cross-examined  as  to  the  whole  transaction.  Lillie 
i'.  McMillan,  52  Iowa,  463,  3  N.  W.  601.  And  great  latitude  should  be 
allowed  in  the  cross-examination  of  all  those  participating.  Lillie  v. 
McMillan,  supra.  Wrongful  and  extravagant  conduct  of  defendant  In 
a  former  seizure  of  the  goods  is  wholly  irrelevant,  and  all  testimony 
thereto  should  be  excluded,  Flinn  v.  Ferry,  127  Calif.  648,  60  Pac.  434. 
Plaintiff  claimed  a  stock  of  goods  as  purchaser  from  one  who  pur- 
chased from  an  assignee  for  creditors,  defendant  under  execution 
against  the  assignor  in  insolvency.  Held  that  evidence  that  as  to  a 
portion  of  the  stock  it  was  carried  away  and  secreted  by  the  assignee, 
and  added  to  the  stock  after  the  sale  by  the  assignee,  was  material,  both 
as  disputing  plaintiff's  title,  and  upon  the  question  of  fraud  in  the 
transaction  under  which  plaintiff  claimed.  Gevers  r.  Farmer,  109  la. 
468,  80  N.  W.  535.  Evidence  that  the  plaintiff,  pending  an  action  by 
creditor  of  a  former  owner  of  the  goods  under  a  judgment  and  execution 
in  which  action  the  defendant  justified,  employed  attorneys  to  defend 
that  action  until  a  bill  of  sale  from  such  former  owner  could  be  pro- 
cured, that  su<:h  attorneys  did  appear,  and  by  sham  and  false  pleas 
procured  delay  until  the  bill  of  sale  relied  upon  was  obtained,  is  ma- 
terial to  show  fraud  in  the  bill  of  sale.  Malone  i).  Stickney.  8S  Ind. 
594.  When  the  value  of  wheat  Is  in  question  it  is  proper  to  ask  where 
was  the  usual  market  for  wheat,  Porter  t'.  Chandler.  27  Minn.  'MH.  7  N. 
W.  142.  An  appralHement  is  not  evidence  of  the  value  againHt  one  who 
is  not  a  party  to  it,  LaMotte  r.  Wisner.  51  Md.  543.  Evidence  as  to  wliat 
the  property  sold  for  may  go  to  the  Jury  upon  the  question  of  value. 
Story  t  Clark  Co.  t'.  GibbonH,  96  Mo.  Ap.  218;  what  the  goodH  sold 
for  upon  execution  againnt  the  mortguKeor,  Is  of  no  relevancy  In 
an  action  by  mortgagee  againHt  the:  ofTlcer,  Pecklngbaugh  v.  QuIIMn. 
12  Neb.  686,  12  N.  W.  104.  The  price  at  whirh  the  goodH  are  »old 
at  public  auction   is  evidence  of  value,  Jacob  f.  WntkiuH,  3  Ap.   DIv. 


598  THE  LAW  OF  REPLEVIN. 

422,  38  N.  Y.  Sup.  763;  Stevens  v.  Springer,  23  Mo.  Ap.  375;  Miller  v. 
Bryden,  34  Mo.  Ap.  602;  otherwise  as  to  the  price  paid  by  the  plaintiff  a 
month  before  the  trial,  Ascher  v.  Schaeper,  25  Mo.  Ap.  1.  The  value  can- 
not be  established  by  plaintiff's  statement  of  the  value  to  herself,  Jacob 
1'.  Watkins.  supra.  The  affidavit  in  replevin  is  not  admissible,  to  estab- 
lish the  value  of  the  goods  replevied,  in  the  action  aganst  the  officer 
and  his  sureties  for  taking  an  insufficient  bond,  Love  v.  The  People,  94 
Ills.  Ap.  237.  Not  jiecessary  that  a  v^fitness  should  be  an  expert  to  testify 
as  to  value  of  machinery;  if  he  has  some  knowledge  of  the  subject,  and 
of  the  particular  property,  he  is  competent.  The  extent  of  his  knowl- 
edge goes  to  his  credit.  Fox  v.  Cox,  20  Ind.  Ap.  61,  50  N.  E.  92.  The 
plaintiff's  affidavit  may  be  referred  to  as  evidence  of  the  value  of  the 
goods,  Lamy  v.  Remuson,  2  N.  M.  245.  The  value  of  an  animal  a  year 
previous  to  the  institution  of  the  suit  is  competent  upon  the  question 
of  value,  Denton  v.  Smith,  61  Mich.  431,  28  N.  \V.  160.  Admissions  as 
to  value  in  pleadings  are  conclusive,  and  if  the  pleadings  are  read 
to  the  jury,  a  formal  offer  of  them  is  not  required.  Edwards  v.  Eveler, 
84  Mo.  Ap.  405.  Where  the  answer  admits  the  value  it  need  not  be  proven. 
Best  V.  Stewart,  48  Neb.  860,  67  N.  W.  881;  Schmitt  Co.  v.  Mahoney, 
60  Neb.  20,  82  N.  W.  99.  In  Adler  &  Sons  Co.  v.  Thorp,  102  Wis.  70, 
78  N.  W.  184,  the  court  refused  to  consider  testimony  that  sotne  suits 
and  sizes  out  of  a  lot  of  clothing  had  been  sold,  sufficient  to  abate,  in 
favor  of  plaintiffs,  the  valuation  which  they  had  placed  upon  the  goods 
in  both  affidavit  and  complaint.  When  the  goods  have  been  replevied 
and  delivered  to  plaintiff,  the  jury  may  in  the  absence  of  any  evidence 
accept  the  statements  of  the  complaint,  as  sufficient  against  the  plain- 
tiff upon  the  question  of  the  value,  even  though  traversed  by  defendant. 
North  Star  Co.  v.  Rinkey,  92  Min.  80,  99  N.  W.  429.  What  is  said  by 
the  parties  to  a  sale  at  the  time  thereof,  touching  the  transaction,  and 
the  amount  paid,  is  part  of  the  res  gestae,  and  competent,  even  in  favor 
of  the  one  speaking.  Fox  v.  Cox,  20  Ind.  Ap.  61,  50  N.  E.  92.  Declara- 
tions of  one  in  possession  of  goods  at  the  time  of  exchanging  them,  are 
admissible  to  show  that  another  was  the  owner,  Mitchell  v.  Sims,  124 
N.  C.  411,  32  S.  E.  735.  The  declarations  of  vendor  or  donor  at  the  time 
of  the  sale,  or  gift,  with  reference  to  such  sale  or  gift,  are  part  of  the 
res  gestae.  Gullett  v.  Otey,  19  Ills.  Ap.  182.  Declarations  of  one  in  pos- 
session of  chattels  are  admissible  to  show  the  nature  of  such  posses- 
sion, and  the  title  claimed;  but  where  the  issue  is,  who  was  the  actual 
owner  they  are  not  admissible  to  support  the  title  of  the  declarant. 
Stone  V.  O'Brien,  7  Colo.  458,  4  Pac.  792.  Declarations  of  vendor  are 
not  admissible  as  against  a  hostile  claimant,  to  prove  title;  unless  the 
adverse  claimant  was  present,  Gullett  v.  Otey,  supra. 

The  declarations  of  one  in  possession  of  goods  are  not  admissible  to 
show  title  when  the  party  against  whom  the  testimony  is  offered  does 
not  claim  under  the  declarant;  nor  to  show  how  the  declarant  came 
into  possession  of  the  goods;  nor  to  show  title  in  another  person, — in 
an  action  to  which  the  declarant  is  not  a  party,  Carroll  v.  Frank,  28 
Mo.  Ap.  69.    The  bond  given  by  defendant  to  retain  the  goods,  may  be  put 


PLEADING.  599 

in  evidence  to  show  an  admission  of  defendant  that  he  had  taken  the 
goods,  Cothran  r.  Knight.  45  S.  C.  1.  22  S.  E.  59G.  Controversy  between 
landlord  and  a  purchaser  under  the  tenant,  the  landlord  claiming  a  lien 
upon  the  goods  for  his  rent,  pursuant  to  statute.  It  being  made  to 
appear  that  the  landlord  consented  to  the  removal  of  the  goods  from  the 
premises,  and  so  waived  her  lien,  the  affidavit  in  replevin  filed  by  the 
other  party,  averring  detention  by  the  landlord,  will  not  be  received 
as  an  admission  of  the  landlord's  possession,  so  as  to  revive  or  support 
his  lien,  Brownell  r.  Twyman,  68  Ills.  Ap.  67.  The  minutes  of  a  cor- 
poration showing  a  contract  made  with  Graham,  to  build  certain  rail- 
road, providing  the  necessary  rails  and  otlier  material,  and  that  the 
contract  is  still  regarded  by  both  parties  as  in  force,  is  admissible 
against  the  corporation  and  in  favor  of  a  third  person,  upon  the  ques- 
tion whether  certain  rails  belong  to  Graham  or  the  Company,  Coos  Bay 
Co.  V.  Siglin,  34  Ore.  80,  53  Pac.  504.  Admissions  in  a  sworn 
answer  filed  in  a  different  suit,  between  other  parties  plaintiff,  and. 
as  defendants,  including  the  defendants  in  the  replevin,  are  admissible 
to  contradict  the  testimony  of  one  of  the  defendants  in  the  replevin 
suit,  Younglove  v.  Knox,  44  Fla.  743,  33  So.  427.  When  the  answer  ad- 
mits title  in  plaintiff  upon  a  certain  date,  a  bill  of  sale  made  by  him 
prior  to  that  date,  is  not  admissible,  Dillery  r.  Berwick,  36  Ore.  255. 
59  Pac.  183.  A  forthcoming  bond  admits  the  identity  of  the  goods 
replevied,  with  those  claimed  by  plaintiff;  and  when  plaintiff  seeks 
to  avoid  a  sale  to  a  third  person  for  his  fraud,  the  bond  admits  the 
identity  of  the  goods  replevied,  with  the  goods  sold.  Hochberger  v. 
Baum,  85  N.  Y.  Sup.  385.  Where  the  answer  denies  the  allegation 
of  ownership,  a  failure  to  deny  other  averments  of  the  complaint 
showing  in  detail  the  basis  of  the  plaintiff's  ownership,  is  not  an  ad- 
mission of  such  averments,  Summerville  i;.  Stockton  Co.,  142  Calif 
529,  76  Pac.  243.  Evidence  as  to  a  right  asserted  by  a  stranger,  not 
claiming  under  the  plaintiff,  is  not  admissible,  Kennett  v.  F'ickel,  41 
Kans.  211,  21  Pac.  93.  The  contention  being  that  certain  books,  the 
things  replevied,  were  partnership  property,  a  paper  in  plaintiff's  hand- 
writing proposing  the  dissolution  of  the  firm,  and  declaring  that  money 
owing  by  the  firm  "  for  books,"  should  be  assunici!  by  tlio  plaintiff,  and 
which  was  presented  by  plaintitT  to  defendant,  before  the  rontroversy 
arose,  though  not  subscribed  by  plaintiff  is  admis.siblo  against  liim  as 
tending  to  show  the  partnership,  and  that  among  its  assets  were  books. 
Jenkins  v.  Mitchell.  40  Neb.  664.  59  N.  W.  90. 

So  a  mortgage  by  the  firm  upon  a  portion  of  the  books,  to  secure  a 
debt  of  the  firm,  Id.  Declarations  of  one  operating  a  mill  that  he  hnH 
leased  It,  or  is  the  owner  of  it.  amount  to  an  asKcrtlon  of  title  to  the 
stock  on  hand  in  the  mill.  So  the  causing  of  sacUH  for  the  product 
of  the  mill  tu  be  printed  with  his  nutne;  and  InHtltutlng  HuitH  for  the 
price  of  goods  sold  from  the  mill,  are  all  reh-vanl  to  the  iHHue  of  prop- 
erty in  8U(  h  gooil.s,  Nodle  r.  Hawlliorn,  lo7  la  3«o.  77  N.  W.  10G2 
Declarations  of  a  dereased  perHon  while  In  poHseKHlon  of  Koods  that  he 
is  the  owner,   though  sclf-servinK.  are  admissible  as  part  of  the  rcM 


coo  THE  LAW  OF  REPLEVIN. 

gestae,  Cunningham  v.  Stoner,  10  Idaho,  549,  79  Pac.  228,  citing  Mc- 
Connell  v.  Hannah,  96  Inrl.  102;  Reiley  v.  Haynes,  38  Kans.  259,  16 
Pac.  440.  5  Am.  St.  Rep.  737. 

Admissions  of  one  while  in  possession  of  a  store,  as  to  the  character 
of  such  possession,  and  that  he  holds  for  another,  affect  one  who  claims 
under  him,  though  such  statements  are  not  conclusive.  Miller  v. 
Jones,  26  Ala.  247.  Statements  and  admissions  of  an  alleged  fraudulent 
purchaser,  made  subsequent  to  his  parting  with  the  possession  of  the 
goods,  are  not  admissible  to  show  his  insolvency  at  the  date  of  his 
purchase,  McCormick  v.  Joseph,  77  Ala.  237.  Plaintiffs  brought  replevin 
against  the  sheriff,  for  goods  obtained  from  them  by  K,  by  means  of 
fraudulent  representations.  The  sheriff  held  them  under  writs  of  at- 
tachment against  K.  The  affidavits  upon  which  these  writs  issued  were 
held  irrelevant  to  plaintiff's  case.  Price  Co.  v.  Rinear,  17  Wash.  95,  49 
Pac.  223.  The  brand  upon  an  animal  is  prima  facie  evidence,  that 
the  animal  is  the  property  of  the  one  in  whose  name  the  brand  is  re- 
corded; but  it  is  only  prima  facie,  and  may  be  overcome.  Debord  v. 
Johnson,  11  Colo.  Ap.  402,  58  Pac.  255.  Flesh  marks  upon  animals 
may  be  proven,  to  identify  the  animal,  and  establish  ownership,  though 
not  recorded  brands.  Turner  v.  The  State,  39  Tex.  Cr.  Ap.  322,  45  S. 
W.  1020.  A  certificate  of  a  brand  recorded  after  the  taking  which  is 
in  question  is  not  admissible  in  evidence  of  title.  Turner  v.  The  State, 
39  Tex.  Cr.  Ap.  322,  45  S.  W.  1020.  An  entry  in  the  plaintiff's  record, 
showing  the  purchase  of  the  properties  of  a  firm,  to  which  the  plain- 
tiff, a  corporation,  claimed  to  have  succeeded,  is  a  mere  recital  of  a 
past  transaction,  and  not  admissible  to  establish  such  transaction. 
Norman  Co.  v.  Ford,  77  Conn.  401,  59  Atl.  499.  An  affidavit  filed  in  an- 
other suit  by  an  agent  of  the  same  plaintiff  is  not  admissible  in  plaintiff's 
behalf,  Dobbins  v.  Hanchett,  20  Ills.  Ap.  396.  Plaintiff  who  has  replevied 
and  retained  the  goods,  will  not  be  permitted  to  show  what  became 
of  them,  there  being  no  claim  that  defendant  received  any  part  of  them. 
After  suit,  plaintiff  cannot  manufacture  evidence  as  to  his  purposes 
in  obtaining  the  goods.  Gevers  v.  Farmer,  109  la.  468,  80  N.  W.  535. 
The  plaintiff  having  obtained  the  goods  upon  the  writ  of  replevin, 
evidence  as  to  what  he  has  done  with  them  is  immaterial  upon  the 
trial,  Merrill  v.  Denton,  73  Mich.  628,  41  N.  W.  823.  It  seems  it  would 
be  otherwise  if  fraud  is  charged  in  the  plaintiff's  acquisition  of  title,  Id. 

Variance. — Plaintiff  declared  as  owner;  justification  under  a  writ 
against  Neis,  alleged  to  be  the  owner.  Reply  that  Neis  never  was  the 
owner.  Held  that  plaintiff  could  not  upon  the  trial  prove  a  purchase 
from  Neis,  antedating  the  execution,  without  first  amending  his  reply. 
Simonds  v.  Wrightman,  36  Ore.  120,  58  Pac.  1100.  If  plaintiff  in  the 
complaint  allege  ownership  he  cannot  upon  the  trial  show  a  mere  lien, 
Hudson  V.  Swan,  83  N.  Y.  552.  Nor  a  holding  in  trust  for  another, 
Gevers  v.  Farmer,  109  la.  468,  80  N.  W.  535.  Answer  admitting  a  bill 
of  sale  to  the  plaintiff,  but  charging  fraud  therein,  upon  the  creditors 
of  the  vendor,  the  defendant  may  nevertheless  prove  that  the  instru- 
ment was  intended  as  a  security  for  money.     Culver  v.  Randle,  Ore., 


PLEADING.  601 

78  Pac.  394.  A  verdict  that  a  defendant  is  the  owner  cannot  be  sup- 
ported by  evidence  of  a  special  interest,  Scbmitt  Co.  r.  Mahoney,  60  Neb. 
20,  82  N.  W.  99.  Substance  of  the  Issue. — Plaintiff  in  an  action  against 
several,  for  a  recovery  of  a  promissory  note  obtained  by  them,  as 
she  alleges,  from  her  husband,  who  held  as  her  agent,  fraudulently, 
and  without  consideration,  allegeil  also  a  conspiracy  among  defendants 
to  accomplish  this  wrong.  Held  that  she  was  not  required  to  prove  the 
conspiracy.  She  might  prove  it  without  alleging  it;  and  if  the  wrong 
was  accomplished  by  defendants,  she  may  recover,  though  there  was 
no  previous  combination.  More  r.  Finger,  128  Calif.  ol3,  60  Pac.  933; 
Kocher  r.  Palmetier,  112  la.  84,  83  N.  W.  816.  Suffi'-iency  of  Eindence. 
— Evidence  that  an  article  was  formerly  the  property  of  plaintiff,  that 
it  had  never  been  sold,  loaned  or  exchanged,  is  not  sufficient,  when  the 
defendant  shows  a  purchase  from  a  third  person,  whom  he  names,  at 
a  time  when,  according  to  plaintiff's  records,  it  was  still  in  their  stock 
room.  Wagner  Co.  r.  Robinson,  84  N.  Y.  Sup.  281.  A  mortgage  in  writ- 
ing is  not  to  be  overthrown  as  secured  by  fraudulent  imposition,  except 
by  clear  and  strong  proof.  Jumiska  v.  Andrews,  87  Minn.  515.  92  N. 
W.  470.  The  circumstance  that  plaintiff  in  offering  a  quantity  of  hides, 
spoke  01  them  as  "  our  hides,"  where  a  third  person  was  present,  is 
not  sufficient  to  warrant  an  inference  of  a  partnership  between  the 
parties,  Jacobson  r.  Poindexter,  42  Ark.  97.  Claflin  &  Co.,  through 
Jordan,  purchased  the  stock  of  Kantrowitz  for  $10.0(iO;  $3,705  of  this 
was  discharged  by  satisfaction  of  the  indebtedness  of  Kantrowitz  to 
that  firm,  the  balance  in  cash;  the  purchase  was  made  without  investi- 
gation as  to  the  value  of  the  stock,  and  Claflin  and  Company  immedi- 
ately resold  the  stock  to  O'Brien,  an  employee  of  theirs,  at  an  abate- 
ment of  $500;  this  abatement  was  not  shown  to  be  made  by  reason  of 
any  observation  by  Claflin  &  Co.  leading  to  the  belief  that  the  goods 
had  been  over-valued  in  their  purchase.  O'Brien  obtained  from  the 
cashier  of  Claflin  &  Co.  the  $3,000  paid  to  the  agent  of  that  firm.  The 
residue,  $6,500.  was  represented  by  his  note.  O'Brien  did  not  require 
the  property  for  any  special  purpose;  he  made  no  inventory  of  it.  and 
immediately  sent  it  to  an  auction  house  for  sale.  Held  that  theso 
circumstances  warranted  the  inference  that  Claflin  &  Co.  In  their  pur- 
chase were  conscious  that  Kantrowitz  was  intending  to  defraud  other 
creditors.  Grossman  v.  Walters.  58  Hun.  603,  11  N.  Y.  Sup.  471.  Trover 
for  a  draft.  A  witness  deposed  that  he  bought  of  defendant  a  drait 
ur>on  an  Irish  bank,  payable  to  plaintirf.  and  h-tt  it  with  dcfcndautH 
to  be  sent  to  Ireland.  It  was  proven  that  the  draft  was  sfut  to  Ir('lun<!. 
was  paid  and  returned  to  d<'fen(lant.  Hut  plaintiff  proved  that  the 
indorsement  of  hlH  nann>  was  not  In  hln  handwriting.  There  was  no 
proof  a8  to  the  particular  InHt ructions  given  to  defendant  an  to  tho 
tranHmlHsion  of  the  draft,  or  that  defendant  did  comply  with  such  In- 
Htructlons,  nor  that  plaintiff  flld  not  In  fa<t  receive  the  money;  nor  but 
that  plaintiff'H  nam*-  wan  liidorHcd  by  Home  other  perHon  at  hlH  n»- 
quest.  Held  the  proof  waH  not  Hufflclent  to  charge  dvfcndantH.  Hoylo 
V.  Roche,  2  E.  I).  Sni.  335 


C02  THE  LAW  OF  REPLEVIN. 

Sales  to  neighbors  and  acquaintances  of  the  operators  in  a  stock, 
at  prices  ranging  from  fifty  cents  to  one  dollar  per  share,  do  not  estab- 
lish a  market  value — but  rather  transactions  made  in  order  to  create  an 
apparent  value.  Fitz  v.  Bynum,  55  Calif.  459.  Defendants  are  not 
to  be  made  liable  in  replevin  by  evidence  that  a  wrongdoer  in  taking 
the  goods,  exhibited  a  mortgage  to  them,  and  declared  he  was  acting 
for  them.     Duffus  v.  Schwinger,  79  Hun.  541,  29  N.  Y.  Sup.  930. 

The  jury  are  not  bound  to  accept  the  testimony  of  any  single  wit- 
ness, especially  an  interested  witness,  as  against  the  effect  of  contra- 
dictory circumstances  appearing  in  the  evidence,  Nicholson  v.  Dyer, 
45  Mich.  610.  8  N.  W.  515.  There  is  nothing  conclusive  as  to  the  title 
in  the  fact  that  the  goods  are  in  the  hands  of  a  common  carrier  con- 
signed to  the  plaintiff,  Id. 

Jury  Acting  of'their  own  Knowledge. — A  jury  may  find  the  value  of 
household  goods,  of  their  own  knowledge,  Sinamaker  v.  Rose,  62  Ills. 
Ap.  118. 


PLEA  OF  NON  CEPIT  AND  NON  DETINET. 


603 


CHAPTER  XXII. 


PLEA  OF  NON  CEPIT  AND  NON  DETINET. 


Section. 

Plea  of  non  cepit  or  noji  detinet  700 
Admissions  in  tlie  pleadings  not 
evidence  as  to  matters  previ- 
ously put  in  issue    .         .        .  701 
Issues  admitted  cannot  be  de- 
nied    702 

Special  statutory  rules       .        .  703 

Effect  of  a  plea  of  non  cepit      .  704 

Form  a  plea  of  non  cepit    .        .  705 
Other    pleas    may     be     joined 

with 706 

Plea  of  cepit  in  alio  loco    .        .  707 

A'o«  detinet  similar  to  non  cepit  708 


Section. 

Illustrations  of  the  use  of  this 
plea 709 

The  same.     Observations  .         .  710 

Disclaimer  of  interest  in  projH 
erty  no  dt^fense        .         .         .711 

Plea  of  justification  ;  the  bur- 
den is  upon  the  party  alleg- 
ing it 712 

General  rules  governing  plea  of 
7wn  det'nu't       ....  713 

If  the  defendant  claims  the  proj)- 
erty  or  damages,  he  must  so 
allege  it  in  his  plea  .        .        .-714 


§  700.  Plea  of  non  cepit  or  non  detinet.  By  the  coimnon 
law,  this  action  \v;is  lor  the  purpose  of  recovering  a  distres.s,  and 
the  plaintiff  always  ciiarges  a  wrongful  taking  and  detaining. 
The  general  issue  in  such  case  was,  " /*o«  cepit.'''' ^  Strictly  s[)eak- 
ing,  there  is  no  general  issue  to  the  action  as  usually  brought  in 
modern  practice  ;  for  the  reason  that  the  action  in  almost  all  cases 
involves  title  to  the  goods,  or  something  more  than  a  simple  taking 
and  detiiining.'  Xon  cepit,  however,  is  unipiestionahly  a  good 
plea,  and  is  the  genenil  issue  when  the  charge  is  for  a  wrongful 
tiiking,  only.'     Xon  <l>tin»t  is   the  general   issue  to  a  charge  of 


'  Har.  Ahr.  title  Hf'i'l**vln  anil  Avowry;   VIn.  Ahr. 

»Dole  t;.  Kenneily.  38  III.  2H4;  AmoH  v.  SInnolt,  4  H.nm.  •H.'i;  Ander- 
son V.  Tahott,  1  fillm.  371;  OlbHon  r.  Mozler.  y  Mu.  258.  So«  AHhby  t;. 
WcHt.  3   Porter,    (Ind.)    170. 

'  In  MaHHai  huHfttH,  Hpedul  pleaji  hi  replevin  were  prohll)lle<|  All 
mattnrB  of  defeoHe  wi-n-  pertiiltted  under  |)le;i  df  uni  uiilliv  Miller  v. 
Sleeper.  4  Cu»h.  370 


C04  THE  LAW  OF  REPLEVIN. 

wrongful  detention,  but  the  plea  of  non  cepit  is  no  reply  to  any 
otlitT  fharge  tli;ui  that  of  taking,  and  no7\  detinet  is  not  a  proper 
plea  to  any  charge  except  for  the  detention  of  the  goods.  These 
pleas  are  of  the  same  substantial  nature  as  the  plea  of  not  guilty, 
in  trespass.  Statutory  ])rovisions  exist  in  some  of  the  States  by 
■\vliich  noii  cepit  or  non  det'niet  puts  in  issue  all  material  facts,  not 
only  the  taking  and  detention,  but  the  right  of  property.*  And 
these  decisions  will  probably  be  followed  in  all  States  having 
similar  statutes.* 

§  701.  Admissions  in  the  pleadings  not  evidence  as  to 
matters  previously  put  in  issue.  It  is  a  general  rule  of  plead- 
ing, which  applies  with  i)eculiar  force  in  rc})levin,  where  both 
parties  are  plaintiffs,  that  when  any  particular  fact  is  affirmed 
upon  one  side  and  formally  denied  upon  the  other,  that  fact  is  in 
issue ;  no  subsequent  admission  in  the  pleading  can  be  used  as 
evidence  of  the  truth  of  it.*"' 

§  702.  Issues  admitted  cannot  be  denied.  It  is  also  a  rule 
that  facts  wliich  are  formally  admitted  in  tlie  pleading  cannot  be 
subsequently  denied.  The  plaintiff  having  based  his  cause  of 
action  upon  an  alleged  possession  in  the  defendant,  cannot  after- 
wards deny  such  possession,  and  seek  a  recovery  upon  tlie  ground 
that  the  defendant  never  had  possession.' 

§  703.  Special  statutory  rules.  There  is  a  provision  incor- 
porated into  many  of  the  codes,  requiring  a  full  statement  of  all 
the  plaintiff's  claim  in  the  complaint,  and  compelling  the  defend- 
ant to  specially  deny  such  matters  as  he  wishes  to  dispute  upon 
the  trial.  A  provision  of  the  common  law  system  has  also  been 
introduced,  by  which  the  defendant  is  regarded  as  admitting  all 
such  matters  as  he  does  not  in  his  answer,  deny.  Where  such 
provisions  exist,  the  pleader  must  be  careful  to  set  out  all  such 
matters  as  he  relies  upon. 

♦Plainfield  v.  Batchelder,  44  Vt.  9;  Loop  v.  Williams,  47  Vt.  415;  Wal- 
pole  V.  Smith,  4  Blackf.  (Ind.)  304;  Noble  v.  Epperly,  6  Ind.  415;  Timp 
V.  Dockham.  32  Wis.  151;  Yates  v.  Fassett,  5  Denio,  (N.  Y.)  26;  Loomis 
V.  Foster,  1  Mich.  165.     See.  also.  Dillingham  v.  Smith.  30  Me.  370. 

"  Campbell  v.  Quinlan,  3  Scam.  288.  In  this  connection,  consult  Little 
V.  Smith.  4  Scam.  400;  Rigg  v.  Wilton.  13  111.  15. 

•  Harington  v.  Macmorris,  5  Taunt.  228;  Edmonds  v.  Groves.  2  Mees. 
&  W.  642;  Fearn  v.  Filica.  7  M.  &  G.  513.  See  Whitaker  v.  Freeman, 
1  Dev.   (N.  C.)    271;   Kirk  v.  Nowell.  1  Term.  R.  261. 

'  Kingsbury  v.  Buchannan,  11  Iowa,  388. 


PLEA  OF  NOX  CEPIT  AND  XON  DETINET.  605 

§  704.  Effect  of  a  plea  of  non  cepit.  The  i)le;i  of  nou  cepU 
is  a  proper  plea  of  general  issue  to  a  charge  of  wrongful  taking. 
Its  office  is  to  deny  the  taking.*  It  does  not  assert  title  in  the 
defendant ;  its  legal  effect  is  to  admit  title  to  the  property  to  be 
in  the  j)laintiff.'  It  admits  every  fact  necessary  to  sustain  the 
plaintitf's  action,  except  the  single  one  of  taking.'"  I'nder  this 
plea  the  defendant  cannot  prove  property  in  himself ;  "  nor  in  a 
stranger ; '-  nor  give  evidence  of  a  justitication  ;  "  nor  ask  a  return 
of  the  goods;  '*  or,  for  damages.'^  liut  while  this  plea  admits  the 
property  to  be  in  the  plaintiff,  it  denies  his  right  to  damages ;  * 

'Ely  V.  Ehle.  3  Comst.  510;  Marshall  v.  Davis.  1  Wend.  115;  Rogers 
V.  Arnold,  12  Wend.  34;  Seymour  v.  Billings.  12  Wend.  280 ;  Trotter  v. 
Taylor,  5  Blackf.  431;  Carroll  r.  Harris,  19  Ark.  238;  Wilson  v.  Royston, 
2  Ark.  315;  D'Wolf  v.  Harris,  4  Mason.  (C.  C.)  528;  Hunt  v.  Chambers. 
1  Zab.  (21  N.  J.)  624;  Sanfd.  Mfg.  Co.  r.  Wiggin,  14  N.  H.  446;  Anderson 
V.  Talcott,  1  Gilm.  365;  Whitwell  v.  Wells,  24  Pick.  28;  Miller  v.  Sleeper. 
4  Cush.  370;  McFarland  v.  Barker,  1  Mass.  153. 

"Coit  V.  Waples,  1  Minn.  134;  Ringo  i'.  Field,  1  Eng.  (6  Ark.)  43; 
Trotter  v.  Taylor,  5  Blackf.  431;  Douglas  v.  Garrett,  5  Wis.  88;  Hop- 
kins V.  Burney,  2  Fla.  46;  Galusha  v.  Butterfield.  2  Scam.  227;  Sanfd. 
Mf.  Co.  V.  Wiggin.  14  N.  H.  446;  Green  v.  Dingley,  24  Me.  137;  Sawyer  v. 
Huff,  25  Me.  465;  Moulton  v.  Bird.  31  Me.  207;  Van  Namee  v.  Bradley, 
69  111.  299;  Johnson  v.  Woolyer,  1  Str.  507;  Bemus  v.  Beckman.  3  Wend. 
672;  Bourk  v.  Riggs.  38  HI.  321;  Vose  v.  Hart.  12  111.  378,  Warner  v. 
Matthews.  18  111.  83;  Chandler  v.  Lincoln.  52  111.  74;  Amos  v.  Sinnott. 
4  Scam.  445;  Hanford  v.  Obrecht.  49  111.  151;  Mitchell  r.  Roberts.  50  N.  H. 
490. 

'"Ely  V.  Ehle.  3  Comst.  (N.  Y.)     510. 

"Smith  V.  Snyder.  15  Wend.  327;  Miller  v.  Sleeper.  4  Cush.  (Mass.) 
370. 

"Vickery  r.  Sherburne,  20  Me.  35. 

"McFarland  r.  Barker.  1  Mass.  153. 

"Butcher  v.  Porter,  1  Salk.  94;  Sipson  v.  McParland.  IS  Pick.  427; 
Holmes  v.  Wood,  6  Mass.  1;  Bourk  v.  Riggs.  38  111.  321;  Seymour  v.  Bil- 
lings. 12  Wend.  286;  Vose  v.  Hart.  12  111.  378;  Hopkins  r.  Burnoy.  2 
Fla.  47;   Moulton  v.  Bird.  31  Me.  297. 

'■•  DouglaHS  V.  Garrett.  5  Wis.  88.  Where  the  Issuf  Ik  upon  the  jilea 
of  non  ccpit  alone,  if  found  for  the  defendant,  he  Is  nut  entitled  to  a  re- 
turn. Underwood  r.  While.  45  111.  438.  "  If  the  drfendant  «!alMi  a 
return,  he  must  add  an  avowry."  Hopkins  v.  Burney.  2  Fla.  47.  "  It 
pula  in  Issue  nothing  but  the  caption  and  the  place,  whore,  etc.  Under 
this  plea,  tho  defendant  cannot  show  property  out  of  thf*  plaLntiff." 
Wilson  V.  Royston,  2  Ark.  315;  D'Wolf  v.  Harris.  4  Musou.  528;  Pang- 
burn  V.  F'atrldKe.  7  John.   142. 

"Hopkins  t;.  Burney,  2  Fla.  45. 


606  THE  LAW  OF  REPLEVIN. 

and  under  this  plea  the  defendant  cannot  aSk  damages.  It  would 
be  absurd  to  renounce  all  claim  to  the  proj)erty,  and  then  claim 
damages."  If  the  defendant  desires  to  claim  damages,  he  must 
add  a  plea  setting  up  a  right  in  himself.'*  Under  this  issue,  the 
plaintiff  nuist  prove  an  unlawful  taking  substantially  at  the  time 
and  place  laid  in  the  declaration." 

§  705.  Form  of  plea  of  non  cepit.  The  u.sual  form  of  the 
plea  of  non  cej)it  is,  non  cepit  modo  et  forma.  This  puts  in  issue 
not  only  the  taking,  but  the  taking  at  the  time  and  place  men- 
tioned in  the  declaration.  If  the  defendant  desires  to  present 
this  issue,  and  to  have  a  return  of  the  goods,  he  should  avow  and 
justify  the  taking,  or  in  some  way  set  up  a  right  to  the  goods  and 
ask  a  return. 

§  706.  Other  pleas  may  be  joined  with.  The  defendant 
may  join  as  many  other  pleas  with  non  aqjit  as  he  deems  proper. 
They  are  not  required  to  be  consistent  with  each  other.  Thus,  he 
may  plead  non  cepit.,  set  up  his  right  to  distrain,  claim  ownership 
of  the  premises  where  the  distress  was  made,  or  title  in  himself 
or  in  a  stranger.*"  This  rule,  permitting  the  defendant  to  file 
several  pleas  was  originally  given  by  statute  4  Anne,  C.  16,  A.  D. 
1706,  and  has  been  the  constant  practice  since  that  time.  The 
approved  doctrine  is,  that  an  admission  of  a  state  of  facts  in  one 


"Hopkins  v.  Burney,  2  Fla.  45;   Douglass  v.  Garrett,  5  Wis.  88. 

'Smith  V.  Snyder,  15  Wend.  324.  "The  plea  only  involves  the  tak- 
ing and  the  place,  not  the  title  to  the  property."  Seymour  v.  Billings, 
12  Wend.  286.  "  This  plea  admits  every  fact  necessary  to  maintain 
the  action  except  the  taking;  that  fact  being  proven,  the  plaintiff  main- 
tains the  issue.  If  the  defendant  has  any  justification  or  excuse,  he 
must  plead  it."  Ely  v.  Ehle,  3  Comst.  510;  People  v.  Niagara  C.  P.,  4 
Wend.  217.  Neither  non  cepit  nor  non  detinet  denies  the  property  in 
the  plaintiff.    Chandler  v.  Lincoln,  52  111.  76. 

"Simpson  v.  McFarland,  18  Pick.  429;  Badger  v.  Phinny,  15  Mass. 
359;  Baker  v.  Fales,  16  Mass.  147;  Marston  r.  Baldwin,  17  Mass.  606. 
A  wrongful  possession  is  regarded  as  equivalent  to  a  wrongful  taking; 
so,  also,  is  obtaining  possession  from  one  who  had  no  authority.  Gray 
V.  Nations,  1  Ark.  566.  And,  see  Sawyer  v.  Huff,  25  Me.  465;  Marshall 
V.  Davis,  1  Wend.  115;   Barrett  v.  Warren,  3  Hill,  348. 

*°McPherson  v.  Melhinch,  20  Wend.  671;  Simpson  v.  McFarland,  18 
Pick.  427;  Whitwell  v.  Wells,  24  Pick.  29;  Mt.  Carbon,  etc.,  v.  Andrews, 
53  111.  184;  McFarland  v.  Barker,  1  Mass.  153;  Shuter  v.  Page,  11  Johns. 
196;  Paul  v.  Luttrell,  1  Col.  319. 


PLEA  OF  NON  CEPIT  AND  NON   DETINET.  607 

plea  cannot  be  taken  as  evidence  of  the  existence  or  non-existence 
of  those  facts,  if  denied  in  any  othcr.=' 

§  707.^  Plea  of  cepit  in  alio  loco.  The  plea  of  cepit  in  alio 
loco,  (took,  but  in  another  place,)  is  proper  in  justification  for  a 
distress  for  damage  feasant,  or  for  rent,  but  is  not  applicable  to 
other  cases."  If  the  defendant  ever  had  the  cattle  at  the  place 
named  in  the  declaration,  even  if  only  in  leading  them  to  the  pound, 
he  should  avow  accordingly.-'  It  must  be  followed  by  an  avowry 
or  cognizance,  or  by  some  justification  of  the  taking,  or  it  is  no 
defence,  as  the  plea  admits  the  taking,  and  must  justify,  or  admit 
that  it  was  wrongful."* 

§  708.  Non  detinet  similar  to  non  cepit.  The  plea  of  non 
detinet  is  exceedingly  like  non  cepit.  It  is  governed  by  the  same 
general  rules  and  principles,  and  puts  in  issue  simply  the  charge 
of  wrongful  detentitm."  It  has  been  said,  witli  much  force,  that 
non  detinet  is  a  proper  plea  to  a  charge  of  wrongful  taking ;  tliat 
the  plaintiff  must  establish  a  detention,  even  when  his  charge  was 
for  taking ;  that  the  detention  is  a  material  fact  to  be  shown,  and 
that  this  plea  is  proper.'* 

§  709.  The  same.  Illustrations.  In  Indiana,  where  tlu^ 
complaint  alleged  tluit  tlie  j)l;iiiititf  was  the  owner,  and  entitled 
to  the  possession  of  the  property  "  which  the  defendant  has  pos- 
se.ssion  of  without  right,  and  inilawfully  detained  from  the  ])laiii- 
tiff,"  the  defendant  replied,  denying  the  unlawful  detention.  The 
denial  of  the  detention  was  lield  to  tendei-  a  proper  issue.'"  In 
Illinois  this  same  jmint  was  decided  the  otlier  way.  Tlu'  declar- 
ation contained  but  one  count;  tiiat  was  for  the  wrongful  taking 
and  detention.  The  defendant  pleaded  7ion  detinet  and  other  pleas. 
The  court  said,  tin;  wrongful  taking  alleged  in  the  declaration  was 
traversable,  and  the  defendant  admitted  it  by  denying  the  wrong- 
ful detention  only.** 

^'  EdmotnlH  V.  Groves,  2  Meps.  &  W.  612;  Haringtoii  r.  Mucmorrls, 
5  Tiiunt.   232. 

"  Lou  gee  v.  Colton,  9  Dana,   (Ky.)   123. 

"Ch.  Plea,  Vol.  \,  p.  4'J'J;  Snow  v.  Como,  Sir.  lUp  ri(»7:  Sawyer  v. 
Huff.  25  Me.  4C5;  Amos  v.  SInnolt,  4  Seam.  445. 

"Gilbert  on  Rep.  p.  129. 

"Chandler  v.  Lincoln,  52  III.  74;  SimmonH  v.  JcnklnH.  7f.  111.  497; 
Fern-ll  j'.  Humphrey,   Hi  Ohio.   ll.J;   OakH  v.  Wyutl,  lu  Ohio.  341. 

"  Paul    t'.    Lultn-11,    1    Gol,   317. 

"RWhIlH  V.   Parke.   12   In<l.   H9. 

"HimmonH  v.  JenkInn,  76  III.  480. 


608  THE  LAW  OF  REPLEVIN. 

§  710.  The  same.  Observations.  The  statutes  under 
which  these  cases  arose  are  in  substance  tlie  same,  hut  the  conflict 
is  not  so  serious  as  may  at  first  appear.  In  tlie  lUinois  case  the 
court  followed  the  .approved  doctrine  that  the  averment  of  taking 
was  not  answered  l)y  the  plea  of  non  detinet,  and  was  therefore 
admitted.  It  does  not  follow,  however,  from  anything  appearing 
in  that  case,  that  the  defendant  would  not  have  been  permitted, 
under  the  plea  of  non  deti/ief,  to  have  shown  that  he  had  returned 
the  goods  before  suit  brought,  had  he  chosen  to  take  upon  himself 
the  burden  of  such  proof.  The  Colorado  case  holds,  in  substance, 
that  the  burden  of  proof  of  the  detention  would  have  been  upon 
the  plaintiff.^"  The  declaration,  in  that  case,  charged  simply  the 
taking,  and  not  the  detention.  The  conclusions  drawn  from  these 
cases  may  not  be  warranted,  but  no  other  mode  is  perceived  of 
harmonizing  the  seeming  differences  they  present. 

§711.  Disclaimer  of  interest  in  property  no  defense.  The 
defendant  cannot  avoid  an  action  of  replevin  by  a  disclaimer  of 
any  interest  in  the  property.  This  is  no  answer  to  the  declaration, 
and  is  no  reason  for  dismissing  the  suit.  He  may  be  guilty  of  a 
wrongful  taking,  or  wrongfully  detaining,  notwithstanding  his 
disclaimer.  Such  an  instrument  was  properly  stricken  from  the 
files."" 

§  712.  Plea  of  justification  ;  the  burden  is  upon  the  party 
alleging  it.  Where  the  defendant  justifies  the  taking  under 
process,  filing  no  other  plea,  the  burden  is  upon  him  to  sustain 
his  plea." 

§  713.  General  rules  governing  plea  of  non  detinet.  The 
rules  governing  pleas  of  non  detinet  are  similar  in  principle  to 
those  ai)plicable  to  pleas  of  fion  cepit.  Under  the  issue  formed 
by  this  plea,  the  plaintiff  must  prove  his  right  to  immediate  and 
exclusive  possession  of  the  goods  and  the  wrongful  detention  by 
the  defendant.^-     While  the  defendant  may  show  that  he  had  re- 

=»  Where  the  declaration  was  for  the  wrongful  taking  and  detention, 
there  was  no  plea  of  non  cepit,  but  pleas  of  property  in  a  third  per- 
son, upon  which  issue  was  taken.  The  pleading  was  considered  as 
admitting  the  taking  and  detention.  The  burden  of  proof  was  then 
upon  the  defendant  to  establish  the  truth  of  his  pleas.  Kern  v.  Potter, 
71  111.  19. 

="  Smith  V.  Emerson,  16  Ind.  355. 

"Hobbs  V.  Myres.  1  B.  Mon.    (Ky.)   241. 

"Amos  V.  Sinnott.  4  Scam.  445;  Rogers  v.  Arnold,  12 'Wend.  30. 


PLEA  OF  NON  CEPIT  AND  NON  DETINET.  609 

turned  the  goods  before  suit,  or  that  he  never  had  them,  he  can- 
not, under  this  plea  alone,  if  successful,  have  a  return  of  the 
goods."  Ji^ofi  detinet  admits  the  right  of  property  to  be  in  the 
plaintiff."  Under  it  the  plaintitf  must  prove  a  wrongful  detention 
by  defendant,  and  his  right  to  immediate  pos.session."  The  plea 
of  non  detinet,  by  statute,  in  some  of  the  States,  puts  in  issue  the 
property  in  the  plaintiff,  as  well  as  the  wrongful  detention,  and 
under  such  plea  the  defendant  is  presumed  to  assert  all  the  rights 
which  the  statute  confers  upon  such  plea.'*  A  return  may  there- 
fore be  awarded  under  such  a  statute  upon  a  plea  of  non  detinet." 
In  Wisconsin,  under  this  plea,  defendant  may  prove  his  right  to 
the  possession  or  his  title  to  the  property." 

§  714.  Writ  not  dismissed  for  neglect  of  officer.  Within 
certain  limitations,  failure  of  an  otticer  to  do  his  duty  will  not  de- 
feat the  rights  of  a  party  not  in  fault.  The  wrongful  levy  by  an 
officer,  as  we  have  seen,  does  not  deprive  the  owner  of  his 
goods."  When  the  writ  is  technically  defective  by  mistake  of  the 
clerk,  a  return  is  not  usually  ordered,  but  the  plaintiff  may  retiiin 
possession,**  though  this  would  not  settle  the  question  of  title. 
So,  where  the  sheriff'  was  by  law  required  to  have  the  goods  ap- 
praised, and  allowed  the  defendant  to  give  bond  and  have  a  return 
of  them  if  he  wished,  and  the  officer  did  not  have  the  goods  ap- 
praised, and  no  opportunity  was  given  to  the  defendant  to  give 
the  statutory  bond  and  have  return,  this  does  not  authorize  a  dis- 
missal of  the  writ.  The  officer  may  be  liable  in  such  case,  but  the 
plaintiff  should  not  be  made  to  suffer.*'  So,  wlien  an  officer  makes 
an  unauthorized  levy  and  sale  of  goods,  the  owner  does  not  lose 
his  goods,  but  may  replevy  them  from  the  purchaser." 

"Johnson  v.  Howe,  2  Glim.  345. 

**IngallB  V.  Bulkley.  15  111.  225.  Contra,  by  statute.  In  some  States. 
Walpole  V.  Smith.  4  Blackf.  304;  Kennedy  v.  Shaw,  38  Ind.  474;  TImp 
V.  Dorkham,  31i  Wis.  151;  Yates  v.  Fas.selt,  5  Denlo,  2G. 

"Amos  V.  binno't,  4  Sram.  445.  It  admits  i\mi  property  to  bo  In 
plaintiff,  and  defendant  cannot  claim  return.  Wells  t'.  McClcnulnn,  23 
111.  410. 

"Walpole  V.  Smith,  4   nia<kf.  304;    Yates  v.  Kassett.  5.   Denlo.  2f.. 

"McKnlght  V.  Dunlop,  4  Barb.  36.     Soo  lx)op  v.  WllllaniH,  47  VL  416. 

"DImond  v.  Downing,  2  Wis.  498;    Emmons  v.  Dowe,  2  Wis.  322. 

■  See,  ante,  (   260,  ct  acq. 

♦•Soe,  ante,  ft  501. 

♦'  I'arlin  f.  Austin.  3  Col.  337. 

"Samuel  V.  Agnew,  80  III.  554;  Combs  v.  Oorden,  59  Me.  Ill;   Pierce 
V.  Benjamlne,  14  Pick.  356. 
39 


tilO 


THE  LAW  OF  REPLEVIN. 


CHAPTER  XXIII. 


REPLEVIN  OF  A  DISTRESS. 


Section. 

Section. 

The  right  of  distress  . 

715 

Tlie  same.     Substance  of  tliese 

Origin  of  the  right 

716 

pleas         

728 

Tlie  right  to   replevy   tlie    dis- 

The rent,  how  payable ;  must 

tress          

717 

be  certain        .... 

729 

Right  of  distress  in  this  coun- 

The  terms  of  the  lease 

730 

tiy 

718 

Tl»e  usual  plea  to  replevin  of  a 

Distress  not  a  suit  at  law  . 

719 

distress 

731 

Replevin  of  a  distress 

720 

Form  of  avowry  or  cognizance 

732 

Rights  of  the  landlord 

721 

Plea  to  an  avowry  or  cognizance 

733 

Sublessor's  liability    . 

722 

Plea  of  set-off  to  an  avowry 

734 

Payment  to  landlord  ;  who  is  a 

Plea  to  an  avowry ;  averments  in 

735 

joint  tenant      .... 

723 

Plea    to    cognizance ;    denying 

Riglits  of  tlie  tenant  . 

724 

authority  of  bail  iff. 

736 

The  avowry  and  cognizance 

725 

Plea  of  "  non-tenure  "  or  "  noth- 

Distinction between  an  avowry 

ing  in  arrear"  . 

737 

and  cognizance 

726 

Same  rules  apply  to  cognizance 

738 

The  exactness  required  in  these 

Effect  of  replevin  on  landlord's 

pleas         

727 

lien 

739 

§  715.  The  right  of  distress.  Replevin  is  the  ancient 
remedy  for  the  recovery  of  goods  wrongfully  seized  by  way  of 
distress.  It  does  not  fall  within  the  scope  of  this  work  to  discuss 
at  length  the  law  of  distress  or  the  riglits  of  the  landlord  and 
tenant.  Such  a  discussion  more  properly  belongs  to  a  treatise 
upon  that  suljject.  ]\Iere  mention  of  the  law  of  distress  as  show- 
ing the  foundation  upon  which  to  base  the  replevin,  must  suffice. 

§716.  Origin  of  the  right.  The  power  of  distress  was  given 
to  the  lord  in  lieu  of  a  forfeiture  of  the  land.  This  was  done  for 
the  purpose  of  compelling  the  tenant  to  pay  the  rent  or  perform 
the  services  due.  Lands,  originally,  were  occupied  by  bondsmen, 
who  were  themselves  the  property  of  the  lord,  and  not  capable  of 
owning  real  estate.     As   these   serfs  became   enfranchised,  the 


REPLEVIN  OF  A  DISTRESS.  611 

right  to  the  use  of  the  soil  became  the  right  of  the  tenant,  but  the 
rents  were  the  property  of  the  hmdlord,  and  he  continued  to  col- 
lect them  by  his  own  authority,  for  in  theory  of  the  law  in  olden 
time  no  man  needed  the  aid  of  a  judge  to  take  what  was  his  own* 
In  process  of  time  the  goods  came  to  be  regarded  as  the  property 
of  the  tenant.  The  landlord,  however,  had  the  right  to  seize  and 
hold  them  as  a  pledge  or  security  to  compel  the  tenant  to  perform 
the  services  or  pay  the  rent.  By  common  law  the  landlord  had 
no  right  to  sell  the  distress  ;  he  could  only  hold  it  as  a  i)ledge  or 
security.  The  statute,  '1  W.  &  M.  C.  5,  gave  the  lord  authority, 
under  certain  conditions,  to  sell  the  distress.  This  remedy  was 
very  mild  compared  with  the  severity  of  the  older  law,  which 
allowed  a  forfeiture  by  which  the  lord  would  seize  the  land  and 
turn  the  tenant  out,  thus  stripping  him  of  the  entire  fruits  of  his 
labor.'  This  power  of  distress  extended  not  only  to  the  crops, 
but  everything  on  the  land  was  equally  liable.  This  right  became 
an  instrument  of  great  oppression  and  many  statutes  were  enacted 
to  remedy  the  evils,  until  at  length  the  tenant  was  permitted  to 
show  that  the  taking  was  wrongful  and  to  give  bonds  to  makt^  tiiat 
appear,  upon  which  he  was  allowed  to  have  his  goods  restored  to 
him ;  that  is,  he  was  permitted  to  take  back  the  pledge.  This 
was  rejileyari  or  replevin.  Replevin  would  originally  lie  in  no 
other  case  than  to  recover  a  distress  wrongfully  tiiken.' 

§  717.  The  right  to  replevy  the  distress.  NVlicn  the  dis- 
tress was  for  any  cause  wrongful,  »1il'  action  (»f  replevin  was  give!i 
to  the  tenant,  to  enable  him  to  recover  it. 

§718.  Right  of  distress  in  this  country.  The  law  of  dis- 
tress has  been  very  gcncially  ado^jtcd  jji  this  country.*  It  never 
existed  in  North  Carolina.^  In  Georgia  it  can  only  issue  upon  the 
oath  of  the  landlord  ;  the  oalli  of  an  agent  is  not  sutlieient.*  It 
was  alxjlished   in  New  York  by  statute,  May,  184G.'     It  does  not 

•Taylor  en  Landlord  and  Tenant,  fi  5G7,  and  the  coses  cited. 

» Hradby  on    DlBlresstB.  6. 

*  S«'e.  ante,  S  41,  et  ncq. 

♦WoKlara  V.  Cowijerthwaltc.  2  Dali.  ( Pii. )  tIS;  H1(1k«'  f  WilHon.  1 
Blackf.  40'J;  llurkct  v.  Houdi-.  3  Dana.  209;  IVnny  f.  Little.  3  Scam. 
(111.)   301. 

•Ualglelah  v.  Grandy.  Cam.  k  N.   (N.  C.)  22. 

•Howard  v.  1)111.  7  c;a.  &2.  Cuntra.  In  Kentucky.  Mllcblll  i.  rranklln, 
3  J.  J.  MarHh.  477. 

'Guild  V.  KoKcrH.  8  liarb.  G02. 


612  THE  LAW  OF  REPLEVIN. 

exist  in  Missouri."  Formerly  distress  was  permitted  of  all  goods 
found  on  the  premises,  whether  they  belonged  to  the  tenant  or  to 
another  person.  This  rule,  however,  has  now  been  overturned  in 
all  or  nearly  all  the  States,'  and  by  statutory  modifications  the 
manner  of  enforcing  the  remedy  has  been  greatly  changed. 

§  719.  Distress  not  a  suit  at  law.  Distress  is  not  a  suit  at 
law.  The  landlord  distraining  empowers  some  one  as  his  bailiff 
to  seize  goods  of  the  tenant  of  sufficient  value  to  pay  the  rent. 
Upon  sucli  seiz.ure  being  made,  it  is  the  duty  of  the  bailiff  to  make 
an  inventory  and  tile  it  in  the  proper  court.  Upon  this  being 
done  the  court  proceeds  to  enquire  if  the  relation  of  landlord  and 
tenant  exists,  and  if  so,  the  amount  of  rent  due  to  the  landlord 
for  rent,'"  and  the  amount  so  found  due  is  certified  Ijy  the  court. 
No  judgment  is  rendered  and  no  execution  is  issued,"  but  a  cer- 
tificate is  issued  by  the  court  to  the  bailiff  of  the  finding,  which 
constitute  his  authority  to  sell.'^  The  reason  for  this  is  found  in 
the  fact  that  originally  the  rent  was  the  property  of  the  lord. 
His  rights  were  superior  to  the  tenant's  in  all  the  property  until 
his  rent  was  paid  in  full.  The  distress  was  a  taking  by  the  lord 
or  by  his  authority  ;  and  this  idea  so  far  continues  to  invest  this 
proceeding,  that  the  courts  only  interfere  to  ascertain  that  the 
relation  of  landlord  and  tenant  actually  exists,  and  the  amount  of 
rent  due. 

§  720.  Replevin  of  a  distress.  Replevin  was  a  suit  at  law, 
to  test  the  right  of  distress.  If  the  tenant  had  offered  security," 
or  if,  for  any  cause,  the  distress  was  wrongful,  the  tenant  might, 
upon  this  writ,  have  his  goods  restored  to  him,  upon  giving  bond 
to  show  the  taking  was  illegal.'*  The  plaintiff'  was  under  no 
obligation  to  bring  the  rent  tendered  into  court,  as  the  question 

'  Crocker  v.  Mann,  3  Mo.  472. 

•Powers  V.  Florance,  7  La.  Ann.  524;  Gray  v.  Rawson,  11  111.  527; 
Owen  V.  Boyle,  22  Me.  47;  Hall  v.  Amos,  5  T.  B.  Mon.  (Ky.)  89.  See 
Allen  V.  Agnew,  4  Zab.  (N.  J.)  443;  Briggs  v.  Large,  30  Pa.  St.  287; 
Riddle  v.  Weldon,  5  Whart.  9.  But,  contra,  see  and  compare  Coburn  v. 
Harvey,  18  Wis.  147;  Laws  of  Wis.,  1866;  Trieber  v.  Knabe,  12  Md.  149. 

"Bull  N.  P.  181;   Skctoe  v.  Ellis,  14  111.  75. 

"Towns  V.  Boarman,  23  Miss.  186;  Richardson  v.  Vice,  4  Blackf.  13; 
Ferguson  v.  Moore,  2  Wash.  (Va.)  54. 

'^Sketoe  v.  Ellis,  14  111.  75. 

"Hilson  V.  Blain,  2  Bailey,  (S.  C.)  168;  Ante,  §  5,  et  seq. 

"Kimball  v.  Adams,  3  N.  H.  182;  Gilbert  on  Replevin. 


REPLEVIN  OF  A  DISTRESS.  613 

was  not  upon  the  tender,  but  whether  the  defendant  was  a  tres- 
passer. Bringing  the  money  into  court  would  have  no  bearing 
upon  the  question  as  to  whether  the  defendant  acted  rightfully 
in  making  the  distress,  or  was  a  trespasser."  Proof  of  the  tender 
was  sufficient.  A  tender  of  rent  before  distress  makes  the  taking 
unlawful."*  A  tender  after  distress,  and  before  impounding, 
makes  the  subsequent  detention  unlawful."  In  either  of  these 
cases,  the  tenant  may  sustain  replevin  for  the  goods  distrained. 
So,  where  there  was  no  rent  due,  or  when  the  distress  was  for 
services  which  the  tenant  was  not  bound  to  render,  or  when  the 
distress  was  of  beasts  of  the  plow,  when  other  goods  couUl  be 
found,  and  in  some  other  cases,  the  distress  was  wrongful ;  '*  or, 
in  modern  times,  where  the  distress  is  of  goods  by  law  exempt 
from  seizure,  in  all  these  cases  the  tenant  may  sustain  replevin. 
§  721.  Rights  of  the  landlord.  Where  any  part  of  the  rent 
is  due  and  unpaid,  the  landlord  has  a  right  to  distrain."  The 
fact  that  the  distress  was  excessive  or  oppressive  will  not  defeat 
his  action,  nor  authorise  the  tenant  to  recover  in  replevin  ;  though, 
for  a  grossly  excessive  distress,  trespass  might  lie.'*'  Where  the 
property  distrained  is  exempt  by  statute,  the  tenant  may  re])levy  ; 
but  he  must  make  that  the  ground  of  his  suit ;  and  where  the 
distress  is  for  more  rent  than  is  due  the  landlord,  or  the  officer 
who  executes,  the  warrant,  he  is  liable  to  the  tenant  in  an  action.-' 
The  tiiking  of  other  security  does  not  defeat  the  landlord's  right 

"Hunter  r.  La  Conte,  6  Cow.  730;  Home  v.  Lewln,  1  Ld.  Raym.  639; 
S.  C.  2  Salk.  583. 

'•Gilbert  on  Replevin,  61. 

"Firth  V.  Purvis,  5  T.  Rep.  227  and  432;  Six  Carpenters'  Case,  8  Coke 
R.  146;  S.  C,  1  Smith's  Ld.  Cases,  62;  Browne  v.  Powell.  4  Bing.  230; 
Hunter  v.  La  Conte.  6  Cow.  (N.  Y.)  728.  [After  distress  for  rent  the 
tenant,  before  the  Impounding,  tenders  the  rent  and  the  costs,  to  the 
landlord's  bailiff,  the  landlord  not  being  present.  The  tender  Is  re- 
fused and  an  excoHsive  demand  made  for  costs;  the  tender  is  in  time, 
and  the  landlord  is  liable  for  the  misconduct  of  the  bailiff;  replevin 
lies.     Hllson  v.  DIain,  2  Bailey,  168.1 

"  Bradby  on  DistresB,  259. 

"Hare  v.  Stegall.  60  111.  380;  Lindley  r.  Miller,  67  lU.  248;  Smith  v. 
Fyler,  2  Hill.  (N.  Y.)  648;  Bates  v.  NelUs,  5  Hill.  (N.  Y.)  651. 

"lb.  See  Smith  v.  ColBon.  10  Johns.  91;  Bowser  v.  Scott.  8  Blackf. 
86. 

"McElroy  v.  Dice.  17  Pa.  St.  163. 


614  THE  LAW  OF  REPLEVIN. 

of  distress."  Nor  is  a  i)ri'vii)us  deiiuuid  for  the  rent  usually 
necessary. '■' 

§  72'J.  Sub-lessor's  liability.  Where  a  sub-lessor  has  his 
goods  distrained  by  the  landlord  of  his  landlord,  he  cannot  sustain 
replevin  by  proving  payment  to  the  party  from  whom  he  leased." 
This  rule,  however,  is  not  universal  in  its  application.  Any  one 
of  several  joint  tenants  may  distrain  for  the  whole  rent,  or  appoint 
a  bailiff  for  the  others;  but  the  avowry  in  such  case  must  lie  for 
all." 

§  723.  Payment  to  landlord  who  is  a  joint  tenant.  Where 
the  tenant  leases  from  tenants  in  common,  payment  of  rent  to 
one  is  not  necessarily  a  discharge  of  the  rent ;  the  others  may 
distrain  for  their  share.'* 

§  724.  Rights  of  the  tenant.  The  landlord  cannot  distrain 
twice  for  the  same  rent,  where  the  first  distress  was  upon  goods 
sufficient  to  pay  the  rent,  even  when  the  first  distress  was  vol- 
untarily abandoned  ; "  nor  where  he  might  have  taken  sufficient 
at  first.-*  The  law  will  not  suffer  the  tenant  to  be  needlessly 
vexed.  The  landlord  cannot  distrain  fixtures  of  the  tenant,'® 
or  chattels  in  the  actual  use  of  the  tenant  or  other  person,  or 
goods  delivered  to  the  tenant  to  be  Avorked  up  in  his  trade  for 
another  ;  ^  nor  goods  which  are  by  law  exempt ;  nor  articles  worn 
upon  the  person  of  the  defendant ;  ^'  nor  can  a  distress  be  per- 

"  Bates  V.  Nellis,  5  Hill,  (N.  Y.)  651. 

=='Mallam  v.  Arden.  10  Bing.  299;  Giles  v.  Elseworth,  10  Md.  333. 

=='Quinn  v.  Wallace,  6  Whart.   (Pa.)   452. 

-'^  Taylor,  L.  &  T.  419.    See  Robinson  v.  Hofman,  4  Bing.  563. 

=*  Decker  v.  Livingston,  15  Johns.  479.  See  Robinson  v.  Hofman,  4 
Bing.  562. 

=■  Dawson  v.  Cropp,  1  Man.  G.  &  S.  962.  See  Ridge  v.  Wilson,  1  Blackf. 
(Ind.)   409. 

^^Wallis  V.  Savill,  2  Lutw.  493. 

==»  Gorton  v.  Falkner,  4   Durnf.  &  E.  567. 

■'Gisbourne  v.  Hurst,  1  Salk.  249;  Thompson  v.  Mashiter,  1  Bing.  283; 
Gibson  v.  Ireson,  43  E.  C.  L.  621. 

"' Maxham  v.  Day,  16  Gray,  (Mass.)  213.  [Fixtures  severed  by  the 
tenant,  or  by  his  authority,  and  left  on  the  premises,  may  be  distrained, 
Reynolds  v.  Shuler,  5  Cow.  323.  Goods  of  a  sub-tenant  on  the  premises 
may  be  distrained  for  rent  due  by  the  original  lessee,  Jimison  v.  Reif- 
sneider,  97  Pa.  St.  136.  In  Delaware  the  landlord  may  for  rent  in 
arrears  distrain  any  goods  on  the  demised  premises,  even  those  of  a 
stranger,  if  not  left  in  the  way  of  trade;  tut  if  before  the  levy  of  the 


REPLEVIN  OF  A  DISTRESS.  615 

mitted  to  take  chattels  after  they  have  been  actually  levied  on 
and  taken  by  an  officer  with  valid  execution  against  the  tenant. 
But  the  right  of  distress  is  not  lost  by  a  receipt  in  full  for  all 
rent  due,  when  the  only  payment  for  which  the  receipt  was  given 
was  an  order  on  a  third  person,  who  had  no  funds  of  the  person 
ordering.'-  Neither  can  distress  be  made  on  the  day  the  rent 
falls  due ;  the  tenant  has  the  whole  of  that  day  in  which  to  pay.'' 

§  725.  The  avowry  and  cognizance.  Where  the  distress  is 
for  any  cause  wTongful,  the  tenant  may  replevy  the  goods.  If  the 
landlord  wishes  to  contest  the  replevin  and  to  secure  a  return  of 
the  goods,  he  must  avow ;  or  if  the  distress  was  made  by  a  bailiff, 
he  must  make  cognizance,  and  so  set  upthe  justness  of  the  taking. 
Tliese  were  originally  the  most  important,  and,  in  fact,  almost  the 
only  pleadings  of  the  defendant  hi  replevin.  They  are  still  com- 
mon in  cases  of  replevin  of  a  distress."  But  the  comparative  in- 
frequency  of  such  cases  has  reduced  the  use,  as  well  as  the 
importance  of  these  pleas.  There  seems  to  be  a  distinction  be- 
tween an  avowry  by  joint  tenants  and  tenants  in  common.  Joint 
tenants  must  join  in  an  avowry  ;  tenants  in  common  must  sever. 
Each  should  avow  for  his  share.'-'  If  one  tenant  in  common 
should  release,  it  is  no  discharge  as  to  the  others.'* 

§  726.  Distinction  between  an  avowry  and  cognizance. 
An  avowry  was  where  the  defendant  admitted  the  taking  and 
justified  under  some  right  of  distress,  as  for  rent  due,  and  de- 
manded a  return  of  the  goods.  "When  the  defendant  sets  up  a 
taking  l)y  distress  in  his  own  right  it  is  called  ;\n  avowry.  When 
he  justifies  under  the  right  of  another,  by  whose  authority  he 
acted,  it  is  called  cognizance  ;  the  former  is  called  an  avowant ; 
the   latter  a  cognizor.     The  difference  between  them  is  formal 

distress  warrant,  the  owner  remove  the  goods,  they  cannot  be  pursued 
by  the  landlord,  Robelen  v.  National  Bank,  1  Marv.  346,  41  Atl.  80. 
Property  of  a  stranger  upon  the  pavement  In  front  of  the  premises, 
is  not  distrainable,   Id.) 

"Printems  v.  Helfried.  1   Nott  &  M<  C.    (S.  C.)    187. 

"Gano  V.  Hart.  Hardin,  (Ky.)  297;  Johnson  v.  Owens.  2  Cranch.  C. 
C.  1«0.  fThere  can  be  no  valid  distroBs  for  n-iit.  unless  rent  Is  actually 
due,  Johnson  v.  Prussing.  4   Ills.  Ap.  ^IT).] 

•♦Howard  v.  Black,  49  Vt.  10;  Lindley  i'.  Miller,  07  111.  241;  Simpson 
I'.  McFarland.  18  Pick.  430;  Quincy  v.  Hall,  1  Pi(  k.  :ii;i 

*Stedman  v.  Bates,  1  Ld.  Raym.  04;  Harrison  v.  Harnby,  5  Term. 
24G;  Cully  v.  Spearman.  2  H.  Bla.  38C. 

"Decker  t".  Livingston,  1.',  Johns.  480. 


616  THE  LAW  OF  REPLEVIN. 

only.  When  by  mistake  a  party  avowed  wlien  lie  should  have- 
made  cognizance,  the  mistake  was  immaterial  and  amendable 
without  delay." 

§  7*J7.  The  exactness  required  in  these  pleas.  Ky  an 
avowr}'  or  by  making  cognizance  the  defendant  becomes  a  plaintiff, 
that  is,  he  sues  for  the  right  to  distrain  ;  his  pleading  is  in  the 
nature  of  a  declaration ;  and,  therefore,  as  much  strictness  is  le- 
(piired  in  such  pleading  as  in  a  declaration  ;  it  must  be  good  in 
every  particular.^'*  The  right  to  distrain  was  an  extraordinary 
power ;  the  authority  upon  which  it  was  made  was  required  to  be 
specifically  shown  in  the  pleading  which  attempted  to  justify  it,^' 
and  required  to  be  sustained  by  proof.'"  An  avowry  or  cogni- 
zance must  admit  the  taking  in  express  terms,  though  if  it  contain 
an  implied  admission  it  will  be  good  after  verdict  without  an  ad- 
mission in  terms.*' 

§  728.  The  same.  Substance  of  these  pleas.  By  this 
pleading  the  avowant  must  state  sulficient  to  make  good  his  riglit 
of  seizure  against  the  plaintiff  who  is  admitted  to  be  the  real 
owner  of  the  goods.  The  avowant  asserts  and  defends  upon  his 
rigiit  to  seize  the  goods,  and  states  the  grounds  of  the  right  in  his 
avowry.*^  Formerly  the  avowry  was  required  to  show  that  the 
avowant,  or  some  one  from  whom  he  inherited  the  estate  out  of 
which  the  rent  of  the  land  arose  Avas  seized,  and  also  to  show  the 
lease  under  which  the  plaintiff  in  replevin  held  from  the  avowant, 
as  well  as  rent  due  and  in  arrear.  But  after  alienations  became 
frequent,  and  of  small  parcels  of  land,  the  fines  to  the  lord  therefor 
were  not  always  paid ;  consequently  the  lord  did  not  always  know 
who  his  tenants  were.  By  Statute  21  Henry  VIII.,  Ch.  19,  §  3, 
the  lord  was  permitted  to  avow  for  a  distress  taken  within  his 

"Brown  v.  Bissett,  1  Zab.  (21  N.  J.)  46;  Wheadon  v.  Sugp,  Cro.  Jac. 
373. 

^Pike  V.  Gandell,  9  Wend.  149;  Wright  v.  Williams,  2  Wend.  632; 
Yates  V.  Fassett,  5  Denio,  31;  Crosse  v.  Bilson,  6  Mod.  103;  Coan  v. 
Bowles,  1  Show.  165. 

"Goodman  v.  Aylin,  Yelv.  148;  Hawkins  v.  Eckles,  2  Bos.  &  Pul. 
359;  Weeks  v.  Peach,  1  Salk.  179;  Same  v.  Same,  1  Ld.  Raym.  679; 
Gilbert  on  Rep.  133,  144;  McPherson  v.  Melhinch,  20  Wend.  671. 

♦^Lavigne  v.  Russ,  36  Miss.  326;   Waltman  v.  Allison,  10  Pa.  St.  465. 

"Gaines  v.  Tibbs,  6  Dana,   (Ky.)    144. 

"Hellings  v.  Wright,  14  Pa.  St.  375;  Simcoke  v.  Frederick,  1  Ind.  54; 
Trulock  V.  Rigsby,  Yelv.  185;   Godfrey  v.  Bullin,  Yelv.  180. 


REPLEVIN  OF  A  DISTRESS.  617 

fee,  and  by  11  George  II.,  Ch.  19,  §  22,  to  avow  generally,  without 
setting  up  his  title  ;  still  he  was  required  to  aver  title  and  seizure." 
It  was  still  necessary,  also,  to  set  out  the  lease,  and  to  state  amount 
of  rent  reserved  and  when  payable,"  and  to  show  that  the  landlord 
was  seized  of  the  premises,  and  that  the  relation  of  landlord  and 
tenant  existed  ;  *^  so  an  avowry  by  three  and  proof  of  a  ilemise  by 
one  of  them,  is  not  sufficient.** 

§  729.  The  rent ;  how  payable  ;  must  be  certain.  The 
rent  was  not  necessarily  payable  in  money,'"  but  might  bo  payable 
in  services,***  or  anything  susceptible  of  valuation  **  which  was 
certain,  or  which  might  be  reduced  to  a  certainty  ;  *"  but  unless 
there  was  a  certain  rent  there  was  no  right  to  distrain.^'  The 
time  for  payment  nmst  also  be  fixed,  unless  the  rent  was  fixed  and 
in  amount,  and  unless  the  time  for  payment  was  certain  the  tenant 
could  never  know  how  much  or  when  to  pay,  and  so  could  not  be 
in  default." 

§730.  The  terms  of  the  lease.  An  avowry  for  rent  should 
state  the  terms  of  the  lease  as  they  will  appear  in  proof, ^''  the 
amount  of  rent,  and  when  it  was  due."  It  nmst  set  out  the 
holding  from  the  plaintiff ;  it  need  not  state  the  plaintiff's  title," 
but  it  must  show  that  there  was  a  tenancy  and  the  avowant  was 
the  landlord."     It  must  also  show  the  amount  of  rent  and  that  it 


"  Harrison  v.  M'Intosh,  1  Johns.  384 ;  Franciscus  v.  Reigart,  4  Watts, 
117  ;  Taylor  r.  Moore,  3  Har.  (Del.)  6. 

**  Forty  r.  Imber,  6  East.  434  ;  Caldwell  r.  Cleadon,  3  Har.  (Del.)  420  ; 
Scott  V.  Fuller.  3  Pa.  5.3 ;  Gilbert  on  Rep.,  133,  et  seq.  :  Helser  v.  Pott.  3 
Barr.  (Pa.)  179;  Valentine  v.  Jackson,  9  Wend.  302  ;  Steele  i'.  Tliompson. 
3  Penn.  .34  ;  Pliilpott  v.  Dobbinson,  6  Ring.  104. 

«  Bain  v.  Clark.  10  Johns.  424. 

♦«  Ewing  V.  Vanarsdale.  1  S.  ic  R.  (Pa.)  370. 

«'  Myers  r.  Mayfield,  7  Bu.sh.  (Ky.)  212. 

♦"  Valentine  v.  Jackson.  9  Wend.  302  ;  Smith  v.  Colson,  10  John.  01. 

«♦  Fraw'r  v.  Davi.-.  r,  Rjnh.  (S.  C.)  Law,  59. 

"  Valentine  v.  Jackwni,  9  Wend.  302. 

*'  Grier  v.  Cowan,  Addis,  (Ph.)  347;  Myers  i'.  Muyfield.  7  BiihIi.  (Ky.) 
212 ;  Smith  v.  Fyler,  2  Hill,  04H. 

»'  WellH  V.  Homish,  8  Pen.  &  W.  (Pa.)  30. 

"  Phipi>s  r.  Ikjyd,  .54  Pa.  St.  342  ;  Taylor  r.  Moore,  3  Har.  (Del.)  6  ;  Tice 
V.  Norton,  4  Wend.  667. 

M  WellH  r.  Horiiish,  3  Pen.  &  W.  (Pu.)  30. 

"  DtMjker  v.  Livingston,  15  Johns.  479;  Wright  r.  Muthows,  2  lUuckf. 
187. 

**  NichuliiA  V.  Duaenbury,  2  Cunmt.  287. 


618  THE  LAW  OF  REPLEVIN. 

is  due  and  in  arrear,"  It  need  not  state  the  exact  amount  due,  as 
that  is  not  necessary  to  a  certain  and  definite  description  of  the 
contract,**  the  object  of  this  certainty  being  to  state  tlie  contract 
with  certainty,  so  tliat  it  may  be  introduced  in  proof. 

§  731.  The  usual  plea  to  replevin  of  a  distress.  In  cases 
wliere  the  replevin  is  for  a  distress  for  rent,  avowry  seems  to  be 
tlie  proper  and  regular  mode  of  pleading  ^"  at  the  present  time  ; 
^and  the  rules  substantially  as  before  stated  apply.  It  has  been 
said  that  the  avowry  should  state  that  the  goods  seized  were 
those  of  the  plaintiff,  but  in  point  of  fact  this  is  immaterial  and 
need  not  be  proved,  as  the  landlord  has  the  right  in  many  cases  to 
distrain  goods  of  persons  other  than  the  tenant,  provided  they  are 
found  upon  the  premises.*"  It  is,  however,  necessary  to  allege 
that  the  goods  were  seized  upon  the  premises,  or  within  the  limits 
Avhere  distress  is  permitted,  and  that  they  are  liable  to  distress.*' 
Joint  tenants  must  join  in  an  avowry,*'  but  tenants  in  common 
must  avow  severally." 

§  732.  Form  of  avowry  or  cognizance.  An  avowry  or 
cognizance  need  not  show  that  the  distress  was  made  by  an  of- 
ficer, or  that  any  affidavit  was  attached  to  the  warrant  of  distress  ; 
even  when  such  affidavit  is  required  by  statute,  it  does  not  form 
any  part  of  the  pleadings.*"'* 

§  733.  Pleas  to  an  avowry  or  cognizance.  An  avowry  or 
cognizance  partakes  of  the  nature  of  a  declaration,  as  well  as  a 

"  Smith  V.  Aurand,  10  S.  &  R.  93  ;  Wriglit  v.  Williams,  5  Cow.  345  ;  Lan- 
-der  u.  Ware,  1  Strobh.  (S.  C.)  15. 

*8  Ban-  V.  Hughes.  44  Pa.  St.  517. 

"  Williams  v.  Smith,  10  S.  &  R.  (Pa.)  202  ;  Weidel  v.  Roseberry,  13  S.  & 
R.  178  ;  Hill  v.  Stocking,  6  Hill,  277  ;  Lindley  v.  Miller,  67  111.  244.  The 
defendant  sought  to  justify  his  taking  a  distress  for  rent ;  instead  of  the 
usual  form  of  avowry  he  has  adopted  the  form  of  a  plea  in  bar,  and  seeks 
by  this  departure  from  the  precedents  to  deprive  the  plaintiff  of  more  than 
one  answer  to  each  justification.  The  experiment  cannot  succeed.  Mc- 
Pherson  v.  Melhincii,  20  Wend.  671. 

*"  ilusprat  V.  Gregory,  3  Mees.  &  W.  677 :  Spencer  v.  ]\rGowen,  13 
Wend.  256 ;  Blanche  v.  Bradford,  38  Pa.  St.  344.  This  was  the  common 
law,  but  it  has  been  thought  necessary  to  repeal  or  modify  it  in  most  of 
the  States  of  the  Union. 

«'  A.sbell  V.  Tipton,  1  B.  Mon.  (Ky.)  300. 

*^  Stedman  v.  Bates,  1  Ld.  Raym.  64. 

"  Bradby  on  Distress,  62  ;  Harri-son  v.  Barnby,  5  Term  R.  246.  See  Jones 
r.  Gundrim,  3  W.  &  S.  (Pa.)  531. 

«  Webber  v.  Shearman,  6  Hill,  32. 


REPLEVIN  OF  A  DISTRESS.  619 

plea.  So  far  as  it  is  an  answer  to  the  plaintiff's  claim  it  is  a 
plea;  so  far  as  it  demands  a  return  it  is  in  the  nature  of  a  declar- 
ation :  the  plaintiff  may  plead  as  many  separate  defenses  to  it  as 
he  deems  proper,**  and  to  an  avowry  he  may  plead  an  abuse  of 
the  defendant's  proceedings,  or  that  they  have  been  irregular.** 
Plea  to  an  avowry  is  governed  by  the  rules  applicable  to  other 
pleas  to  declaration  ;  it  must  answer  all  it  professes  to  ;  each  plea 
should  only  answer  one  avowry."  The  pleas  may  deny  the  tenancy 
set  up  in  the  avowry,  or  may  show  that  the  rent  is  not  due  ;  or 
that  the  goods  are  privileged,  or  exempt  from  distress ;  or  that 
the  goods  are  the  property  of  a  stranger. 

§734.  Plea  of  set-off  to  an  avowry.  The  plaintiff  in  re- 
plevin cannot  off-set  accounts  against  the  distrainor  unless  it  be 
such  matters  as  grow  out  of  the  contract  of  leasing.*^'*  The  action 
is  in  form  an  action  ex-delicto,  and  seeks  damages  for  the  unlaw- 
ful taking  of  personal  property,  and  it  is  no  justification  for  such 
taking  that  the  defendant  is  indebted  to  the  plaintiff.  The  land- 
lord's indebtedness  to  the  tenant  would  not  take  away  his  right 
to  distrain  for  rent.  But  this  will  not  prevent  the  tenant  from 
showing  anything  which  goes  to  prove  that  the  rent  was  not  due 
So,  when  the  landlord  leased  a  tavern  and  wagon  yard,  and  agreed 
to  put  cinders  on  the  yard,  and  did  not  do  so,  it  was  held  the 
rent  was  conditioned  in  part  upon  the  agreement  to  put  the 
premises  in  better  order,  and  the  damage  was  allowed  to  reduce 
he  rent.**  But  he  may  claim  damages  against  the  landlord  on 
account  of  a  breach  of  the  contract  of  leasing,""  or  payment  or 
part  payment  of  the  rent ; "'  or  may  off-set  any  demand  against 
the  landlord  arising  out  of  the  contract  of  leasing,  and  properly 
the  subject  of  recoupment ;  "  or  may  plead  and  show  nothing  in 
arrears.     But  he  cannot  set  off  another  claim  against  the  land- 

"  Webber  r.  Shearman,  6  Hill,  (N.  Y.)  U  ;  McPherson  r.  Melliiiich,  20 
Wend.  671. 

*♦  0«t;fx>.i  V.  Green,  10  Fost,  (X.  H.)  210. 

*■■  NichulM  V.  Dasenbury,  2  Coinst.  2«7  ;  Roberts  v.  Tennell,  1  Litl.  (Ky.) 

2m. 

**  Beyer  r.  Fenstermjurlier,  2  Wlitirt.  (Pa.)  95. 
*•  Fairiimn  v.  Fliirk.  r,  VVattH.  (Pa.)  r.lO. 
'•  Lin.lley  v.  Milb-r,  67  111.  2U. 

■"  Sripsfopl  V.  Fl.!l<lier,  1  T.-rin.  K.   r»12  ;   Wol^jainot  r.  Bruner,  4  liar.   »t 
Mrll.  (M.l.)70ari.|  H'J. 

"  StreeUjf  v.  Streetor.  l.'J  111.  IW. 


620  THE  LAW  OF  REPLEVIN. 

lord ;  the  only  questions  to  be  decided  in  this  action  relate  to 
tenancy  anil  the  rent  due." 

§  735.  Pleas  to  an  avowry ;  averments  in.  Plea  to  an 
avowry  need  not  allege  any  place  of  taking,  when  the  avowry 
justifies  the  taking  at  the  place  alleged  in  the  declaration.'*  Plea 
that  the  defendant  drove  the  cattle  three  miles  to  a  public  pound, 
but  does  not  allege  a  nearer  place,  is  bad."  So  a  plea  to  an 
avowry  must  show  that  nothing  is  in  arrear  for  rent,  or  it  will 
be  defective.  When  the  plea  claimed  that  the  landlord  had 
neglected  to  keep  his  covenants  for  repairs,  and  that  the  dam- 
ages resulting  therefrom  more  than  equaled  the  rent,  the  plea 
should  have  so  stated  ;  a  mere  claim  of  damages,  though  in 
several  sums,  will  not  be  sufficient  unless  it  be  followed  by  an 
averment  that  the  sums  so  due  equal  or  exceed  the  rent  claimed ; 
otherwise  it  will  not  appear  affirmatively  but  some  rent  is  due." 
Defendant  avowed  and  justified  the  detention  under  his  right  of 
lien  as  the  manufacturer ;  it  was  not  denied  but  this  was  well 
avowed,  but  the  plea  to  the  avowry  set  up  new  matter  that  the 
work  was  done  under  a  contract  which  precluded  a  lien  ;  heldy 
proper."  Such  plea,  however,  must  set  up  the  agreement  with 
certainty. 

§  73G.  Plea  to  cognizance,  denying  authority  of  bailiff. 
Where  the  defendant  made  cognizance  as  bailiff  to  J.,  the  plain- 
tiff pleaded  that  he  was  not  Bailiff  J.  The  plea  was  held  good  ; 
for  though  it  may  be  that  J.  had  a  right  to  distrain,  yet  a  stranger 
without  his  authority  could  not."** 

§  737.  Plea  of  "  non-tenure,"  or  "  nothing  in  arrear." 
To  an  avowry  for  rent,  the  defendant  (the  plaintitt'  in  replevin,) 
may  plead  non  tenure,  or  nothing  in  arrear.  The  former  of  these 
pleas  denies  the  tenancy  ;  the  latter  admits  the  tenancy,  but 
denies  that  rent  is  due.'* 

§  738.  Same  rules  apply  to  cognizances.  Substantially 
the  same  rules  apply  to  making  cognizance  as  to  an  avowry,  ex- 

"  Anderson  v.  Reynolds.  14  S.  &  R.  439, 

'*  Judd  V.  Fox,  9  Cow.  262. 

«  Adams  v.  Adams,  13  Pick.  385. 

«  Lindley  v.  Miller,  67  111.  248. 

"  Curtis  V.  Jones,  3  Denio,  590. 

"  Trevilian  v.  Pyne,  1  Salk.  107. 

"  Bloomer  v.  Juliel,  8  Wend.  448. 


REPLEVIN  OF  A  DISTRESS.  621 

cept  in  the  latter  cise  the  cognizor  sets  up  the  title  of  the  land- 
lord and  claims  to  act  as  his  bailiff,  and  not  in  his  own  right.*" 

§  739.  Effect  of  replevin  on  landlord's  lien.  We  have  seen 
that  by  distraining  the  landlord  acquires  a  lien  to  satisfy  the 
amount  of  rent  due.  By  replevin  the  lien  of  the  landlord  so 
acquired  is  gone ;  *.  e.,  the  tenant,  by  replevying,  retakes  his 
former  title,  and  the  landlord  must  look  to  the  security  upon  the 
bond."  The  landlord  may,  however,  have  judgment  for  a  return 
of  the  goods,  and  under  a  writ  of  return  he  may  regain  posses- 
sion ;  in  such  case  he  may  sell  them  to  satisfy  his  lien.  As 
against  the  plaintiff  his  lien  or  right  to  return  may  he  good,  but 
not  as  against  strangers  acquiring  title  in  good  faith." 

»  Webber  v.  Shearman.  6  Hill.  (N.  Y.)  31  :  Ch.  PI.  :  Steph.   PI.  332,  376. 

«'  Speer  v.  Skinner.  3",  111.  302  ;  Bruner  v.  Dyball.  42  111.  37  ;  Burkle  v. 
Luce,  6  Hill.  5.59  ;  Woglam  v.  Cowperthwaite,  2  Dall.  68,  131  ;  Acker  v. 
White.  2.5  Wend.  614. 

8*  Burkle  v.  Luce,  6  Hill,  558  ;  Acker  v.  White,  25  Wend.  614. 


622 


THE  LAW  OF  REPLEVIN. 


CHAPTER  XXIV. 


THE  VERDICT  AND  JUDGMENT. 


The  verdict  .        .        .         .^^40 

Court  may  correct  the  form,  but 
cannot  cliangetlie  substance  .  741 

The  same 742 

The  jury  must  pass  upon  all 

questions  at  issue  .  .  .  743 
May  find  for  both  parties  .  .  744 
Each  party  may  submit  issues 

to  the  jury  ....  745 
"Not  guilty,"  what  responsive 

to 746 

Statutory  exceptions  .         .         .  747 
In  justice  courts        .         .         .  748 
Illustrations  of  the    exactness 
required  in  the  verdict   .        .  749 

The  same 750 

Finding  need  not  be  in  express 

words  .....  751 
The  same.  Illustrations  .  .  752 
The  verdict  may  be  general  if 

it  cover  all  the  issues      .         .  753 
The  same.     Illustrations    .         .  754 
Verdict  should  not  merge  dif- 
ferent issues    ....  755 
Separate  defendants  may  have 

separate  verdicts  .  .  .  756 
Verdict  must  be  certain  .  .  757 
The  same.  Illustrations  .  .  758 
Must  be  consistent  .  .  .  759 
Value  of  property  ;  when  must 

be  found 760 

Value  of  separate  articles  .  761 
Conditional  verdict  .  .  .  762 
Value  where  the  party's  interest 

is  limited         .        .        .        .  '<'63 
Verdict  for  damages  ;  when  es- 
sential       764 

The  same 765 


Section. 
.   766 


767 
768 
769 
770 


771 


The  judgment     .... 

Sliould  embrace  all  parties  and 
all  issues  .        ... 

The  same 

Must  be  certain  .... 

Judgment  upon  default 

When  property  has  been  deliv- 
ered plaintiff  cannot  have 
value 

Judgment  for  value  or  delivery  772 

Judgment  in  the  alternative  for 
the  goods  or  for  their  value   .  773 

Exceptions  to  this  rule       .         .  774 

Judgment  for  each  party,  for 
different  parts  of  the  goods   .  775 

Separate  judgment  as  to  sepa- 
rate defendants 

Order  for  deliver}'  part  of  the 
judgment         .... 

Defendant  entitled  to  reasona- 
ble time  to  comply  with  the 
judgment  for  return 

Effect  of  payment  of  judgment 
for  value 

The  same 

Judgment  of  non-suit  does  not 
affect  title        .... 

Judgment  of  dismissal 

Illustrations  of  the  effect  of 
judgment  .... 

Judgment  for  value  of  limited 
interest    

Judgment  for  value  on  count  in 
trover       ..... 

Wlien  property  is  lost,  judg- 
ment for  return  immaterial  . 

Judgment  for  value  in  such 
cases 787 


776 


778 

779 

780 

781 
782 

783 

784 

785 

786 


THE  VERDICT  AND  JUDGMENT.  623 

§  740.  The  verdict.  There  is  probably  no  form  of  action 
■where  more  exactness  is  required  in  the  verdict  than  in  replevin. 
In  other  actions  the  issues  are  usually  few  and  simple,  while  in 
replevin  they  may  be  numerous  and  sometimes  complex.  The 
verdict,  therefore,  requires  the  most  careful  attention. 

§  741.  Court  may  correct  the  form,  but  cannot  change 
the  substance.  The  court  is  authorized,  and  will,  in  all  cases,, 
when  it  is  necessary,  correct  mere  formal  mistakes  in  the  verdict, 
so  as  to  make  it  correspond  with  the  true  finding  of  the  jury  and 
the  form  required  by  law ; '  but  cannot  correct  a  verdict  so  as  to 
change  in  any  way  the  intention  of  the  jury.  Each  party  has  a 
right  to  the  verdict  of  the  jury  upon  the  issues  presented,  and  if 
it  is  not  relevant  to  the  issues  or  erroneous,  the  court  may  set  it 
aside,  but  cannot  change  it*  Thus  the  court  would  have  no  right 
to  add  nominal  damages,'  or  a  statement  of  the  value  of  the  prop- 
erty, after  the  verdict  was  rendered.*  So,  where  the  verdict  is 
for  the  plaintiff  without  finding  the  sum  due,  judgment  for  the 
sum  demanded  is  error.* 

§  742.  The  same.  It  is  in  the  power  of  the  court,  after  the 
verdict  has  been  presented,  and  before  the  jury  is  discharged,  to 
direct  them  to  put  it  into  form,  or  the  court  may  instruct  them  to 
render  a  more  specific  verdict,  or  to  pass  upon  issues  duly  pre- 
sented which  they  have  failed  to  pass  upon.  Such  course  is  proper, 
and  in  many  cases  necessary.® 

§  743.  The  jury  must  pass  upon  all  questions  at  issue. 
The  jury  are  not  recjuired  to  pass  ui)t)n  any  (jucstions  which  are 
not  in  issue,  nor  which  are  admitted  by  the  pleading ;  but  simply 
upon  tho.se  which  are  sul)mitted  for  their  determination.' 

1  Donaldson  v.  Johnson,  2  Cliand.  (Wis.)  1(50  ;  O'Biieii  r.  Pjiliner,  H»  111. 
73  ;  Osgood,  v.  McConiiell,  :«  111.  ll ;  Patterson  v.  United  Statt's.  ','  Wlu'iit. 
221  ;  Thompson  v.  Uutton.  14  Joiin"s  II.  «G  ;  0'Ke<-fe  r.  Kellogg,  15  HI.  :{51. 

»  Coit  V.  Wu|)h*8.  1  Minn.  i;54  ;  Fruzier  i\  Liiughlin,  1  (iilni.  347  ;  Moore 
V.  Devol,  14  Iowa,  1 !',» ;  Hiiickk-y  v.  West.  4  Gilin.  i:i«  ;  Walliic.-  v.  Hil- 
liard,  7  Wis.  627  ;  Ford  v.  Ford,  o  Wis.  'M'J  ;  Duiihar  r.  Hiltle.  7  Win.  144. 

•  I:i«muH  V.  Bi-ekinan,  3  Wend.  071. 

♦Wallace  v.  Hilliiinl,  7  Wis.  627;  Taylor  r.  llalhawiiy.  29  Ark.  Mt7  ; 
p:aton  V.  Caldwell.  3  Minn.  134. 

'Taylor  r.  Ilatiiaway,  29  Ark.  .'J'J7.  Conii)are  Hiiriiuns  r.  TibhitU,  7 
n<.w.  I'r.  Hep.  21.  74. 

•  Hunt  V.  Bennett,  4  (;.  <ireene.  Mown.)  nir*. 

'  Patterson  r.  Unil<-<l  States,  2  Wheat.  221  ;  WilfV)xon  f.  Annosley,  28 
Ind.    2^7  ;  Woodbum  r.   (Jhaniberlin,   17   Harb.  446  ;   Dana  V.    Uryiinl.  1 


«24  THE  LAW  OF  REPLEVIN. 

§  744  May  find  for  both  parties.  Where  the  plaintiff's 
claim  is  for  several  articles,  it  may  be,  and  usually  is,  divisible. 
The  defendant  may  set  up  as  many  separate  defenses,  material 
to  the  issues,  as  he  judges  proper,  and  the  verdict  may  be  in  favor 
of  the  plaintiff  for  a  portion  of  the  property  and  for  the  defendant 
for  the  remainder,''  as  the  facts  and  the  rights  of  the  several  par- 
ties require.* 

§  745.  Each  party  may  submit  issues  to  the  jury.  The 
verdict  must  be  responsive  to  all  the  issues  presented  by  the 
pleadings.  Each  party  has  a  right  to  submit  such  material  issues 
by  proper  pleading  as  he  shall  think  necessary  for  the  protection 
of  his  mterests,  and  has  the  right  to  have  the  jury  pass  upon 
them.  A  failure  of  the  jury  to  do  so  will  justify  the  court  in 
setting  aside  the  verdict  and  granting  a  new  trial.  When  the 
plea  was  non  cepit  and  the  verdict  was  "  guilty  of  unjust  deten- 
tion," it  did  not  dispose  of  the  issue  tendered  in  the  plea.'"  When 
a  plea  of  general  issue  and  plea  of  property  are  interposed,  a 
simple  findmg  of  "  not  guilty  "  is  not  responsive  to  the  issue.  In 
such  cases  a  venire  de  novo  will  be  ordered."  The  proper  practice 
in  case  the  verdict  omits  to  pass  upon  all  the  issues  is  by  a  motion 
for  a  venire  de  novOy  not  by  a  motion  for  a  new  trial.  A  venire  de 
novo  is  granted  for  a  defect  appearing  upon  the  record ;  a  new 
trial  for  some  matter  outside  of  it." 

Gilm.  104;  Briggs  n  Dorr.  19  Johns.   95;  Jack  v.   Martin,  12  Wend.  316; 
Machette  v.  Wanless,  1  Col.  225. 

8  Hotchkiss  V.  Asliley,  44  Vt.  195  ;  Edelen  v.  Thompson,  2  Har.  &  G. 
(Md.)  32  ;  Powell  v.  Hinsdale.  5  Mass.  343  ;  Poor  v.  Woodburn,  25  Vt.  235 ; 
Brown  v.  Smith,  1  N.  H.  36  ;  Wriglit  v.  Mathews,  2  Black.  (Ind.)  187  ; 
Dowell  V.  Richardson,  10  Ind.  573  ;  O'Keefe  v.  Kellogg,  15  111.  351  ;  Wil- 
liams V.  Beede,  15  N.  H.  483. 

9  Pratt  V.  Tucker,  67  111.  346. 

10  Bemusr.  Beekman,  3  Wend.  667  ;  Smith  r.  Phelps,  7  Wis.  211  ;  Heeron 
V.  Beck  with,  1  Wis.  22 ;  Ronge  v.  Dawson,  9  Wis.  246  ;  Childs  v.  Childs,  13 
Wis.  17  ;  Hanford  v.  Obrecht,  38  111.  493  ;  Patterson  v.  United  States,  2 
Wheat.  225. 

"  Wallace  v.  Hilliard,  7  Wis.  627  ;  Bemis  v.  Wylie,  19  Wis.  318  ;  Ronge 
V.  Dawson,  9  Wis.  246  ;  Smith  v.  Phelps,  7  Wis.  211  ;  Johnson  v.  Howe,  2 
Gilm.  346  ;  Rose  v.  Hart,  12  111.  378  ;  Smith  v.  Wood,  31  Md.  293.  A  ver- 
dict of  no  cause  of  action,  is  not  responsive  to  the  issues  of  taking,  deten- 
tion, and  property  in  defendant.     Ford  v.  Ford,  3  Wis.  399. 

"  Bosseker  v.  Cramer,  18  Ind.  45.  When  the  verdict  did  not  pass  upon 
the  whole  issue,  but  left  part  of  the  facta  denied  by  the  plea  unnoticed, 
it  was  bad,  and  judgment   was  reversed.     Miller  v.  Trets,  1  Ld.  Raym. 


THE  VERDICT  AND  JUDGMENT.  625 

§  746.  "  Not  guilty ; "  what  responsive  to.  There  is, 
strictly  speaking,  no  plea  of  general  issue  in  replevin.  Where 
the  charge  is  for  taking  only,  a  plea  of  iion  cepit  is  equivalent  to 
a  general  issue ;  if  the  charge  is  for  detaining,  tlie  plea  of  non 
detinet  has  the  same  efifect.  A  verdict  of  not  guilty  would  be 
responsive  to  either."  When  the  pleas  were,  1,  no7i  cepit,  2, 
property  in  defendant,  and,  3,  in  a  stranger,  verdict  of  not  guilty 
was  responsive  to  tion  cepit  only,  and  did  not  authorize  any  judg- 
ment upon  tlie  other  pleas." 

§  747.  Statutory  exceptions.  In  some  of  the  States,  by 
statute,  the  plea  of  non  detinet  or  /ion  cepit  puts  in  issue  not  only 
the  detention,  but  the  right  of  property  in  the  plaintiff  ;  '^  while, 
by  the  common  law,  non  cepit  and  7ion  detinet  admit  the  property 
to  be  in  the  plaintiff,  but  deny  the  taking  and  detention  respec- 
tively.'* Where  the  statute  makes  the  plea  of  non  detinet  a  denial 
of  property  in  the  plaintiff,  a  verdict  of  not  guilty  upon  that  plea 
must  be  regarded,  it  would  seem,  not  only  as  responsive  to  the 
issue  upon  the  detention,  but  upon  the  question  of  property  as 
well. 

§  748.  In  justice  court.  In  a  justice  court,  where  the  plead- 
ings are  oral,  the  same  strictness  is  not  required  ;  and  where  the 
case  was  an  appeal  from  such  court,  a  verdict  finding  the  defend- 
ant guilty,  though  not  strictly  in  form,  was  regarded  as  equivalent 
to  finding  property  in  plaintiff." 

§  74!».  Illustrations  of  the  exactness  required  in  the 
verdict.  Tlie  defendant  pleaded  that  he  had  not  Uiken  or  de- 
tained the  property  ;  also,  property  in  a  stranger,  and  property  in 
defendant ;  the  plaintiff  joined  issue  upon  tlie  first,  and  replied 
t(i  the  second  and  third  pleas.  The  jury  returned  a  verdict,  "  we 
find  the  property  to  be  in  the  plaintiff."     I/eld,  the  verdict  did 

324.  A  %"er(Jict  is  bail  if  it  vary  fnjin  tlio  issue  submitted  in  any  substan- 
tial matter,  or  if  it  fiml  only  part  of  tlio  issues  Hui)niitti'(l.  ratterson  r. 
UnlK-d  States.  2  Wheat.  22r,. 

'»  Dole  V.  Kennedy,  W  111.  2^1  ;  Rouik  v.  RiK'K's.  -i^  HI.  ."{2!. 

>•  Ilanford  r.  Obreclit.  -lU  III.  ir,l  ;  Ilanfonl  r.  (Jbreciit,  .'{H  Hi.  .|!t;t.  .See, 
alH<»,  Btiinus  v.  Beeknian,  3  Wend.  007;  Spnif^ue  v.  Kneeland,  12  Wond. 
10-1  ;  lioynton  v.  Page.  13  Wond.  132  ;  .Maeholte  r.  Wanless,  1  Col.  22r). 

■'»  Ford  V.  Ford,  3  Wis.  309  ;  Tiinp  r.  Dotikhani,  32  Wis.  \r,l  ;  Wal|Hde  v. 
Sniitli,!  BIa<kf.  (Ind.)  304;  Nobler.  Ep|)erly,  6  Tort.  (Tnd.)  411  ;  I'lain- 
field  V.  Hatrheldor,  44  Vl.  9  ;  IyK)p  v.  Williams,  47  Vt.  416. 

'•  S*»«  i»lea  of  itoii  rrj/it.     Antr,  Oiap.  22. 

«'  Jarrard  i'.  IIari>er,  42  III.  457. 
40 


626  THE  LAW  OF  REPLEVIN. 

not  authorize  a  judgment.  It  omitted  to  find  whether  the  prop- 
erty had  been  taken  or  detained  by  the  defendant.'*.  A  verdict  of 
7ion  detinet  only  establishes  the  question  of  detention.  It  does 
not  find  the  right  of  property.  The  finding  may  be  true,  and  yet 
the  proi)erty  may  be  some  otlier  person's  than  tlie  plaintiff."  So, 
upon  the  issue  of  non  cepit,  a  finding  for  the  defendant  only  de- 
termines the  fact  tliat  the  defendant  did  not  take  the  property  as 
charged.  It  does  not  in  any  way  settle  the  title.  Upon  this  issue 
a  finding  by  the  jury  of  an  actual  wrongful  taking  by  defendant 
will  necessarily  entitle  the  plaintiff  to  a  judgment,  because  an 
nctual  wrongful  taking  may  occur,  and  yet  the  taker  be  the  owner 
of  the  property.*" 

§  750.  The  same.  Where  the  title,  as  well  as  the  right  to 
the  possession,  is  in  issue,  and  the  verdict  is  only  as  to  the  right 
of  possession,  the  issue  as  to  title  is  not  determined,  and  a  new 
trial  should  be  granted.  The  title  may  be  in  one,  and  the  right 
of  possession  in  another,  and  these  questions,  when  submitted, 
should  be  passed  upon.^'  When  the  defendant  claimed  only  a 
lien  upon  the  goods,  and  the  verdict  was  silent  upon  this  subject, 
a  new  trial  was  granted." 

§  751.  Finding  need  not  be  in  express  words.  The  find- 
ing need  not  be  in  express  words  when  the  intention  of  the  jury 
is  clear.  Thus,  where  the  plaintiff,  in  his  declaration,  sets  up 
several  distinct  causes  of  action,  and  general  issue  is  pleaded, 
and  the  jury  allow  him  certain  specified  causes,  and  say  nothing 
about  the  others,  the  verdict  may  be  sufficient  to  authorize  a 
judgment  for  him  to  the  extent  to  which  it  finds  for  him  ;  and 
such  verdict,  and  judgment  thereon,  will  be  a  bar  to  a  second  ac- 
tion on  the  causes  not  named  in  express  words." 


"  Huff  V.  Gilbert,  4  Blackf.  (Ind.)  19  ;  Smith  v.  Houston,  25  Ark.  184. 

"  Bemus  v.  Beekman,  3  Wend.  668  ;  Emmons  v.  Dowe,  2  Wis.  322. 

2-'  Heeron  v.  Beckwith,  1  Wis.  22  ;  Moulton  v.  Smith,  32  Me.  406. 

Appleton  V.  Barrett,  22  Wis.  568.  Pleas  were,  did  not  take  or  detain. 
Verdict,  "we  find  the  right  of  property  to  be  in  plaintiff,  and  assess  his 
damages  as  one  cent."  Held,  insufficient  to  autliorize  judgment  in  liis 
favor.  It  was  not  responsive  to  the  issues.  Richardson  v.  Adkins,  6 
Blackf.  142. 

•^  Warner  v.  Hunt,  30  Wis.  200. 

«8  Brockway  v.  Kinney,  2  John.  210  ;  Freas  v.  Lake,  2  Col.  480  :  Irwin  v. 
Knox,  10  John.  365  ;  Markham  v.  Middleton,  2  Strange,  1259  ;  Lewis  v. 
Lewis,  Minor,  (Ist  Ala.)  95  ;  Ward  v.  Masterson,  10  Kan.  78. 


THE  VERDICT  AND  JUDGMENT.  627 

§  752.  The  same.  Illustrations.  When  the  suit  was  for 
two  slaves,  " Ben "  and  "Joe,"  the  verdict  was,  we  find  for  the 
plaintitf  for  "  Ben,"  and  was  silent  about  "  Joe,"  the  court  said, 
we  do  not  suppose  any  one  would  regard  this  as  a  verdict  upon  part 
of  the  issues.  The  silence  of  the  verdict  as  to  "Joe  "is  equiva- 
lent to  an  express  finding  as  to  him  for  the  defendant.**  Verdict, 
that  the  "defendant  had  a  special  property  in  the  goods  to  an 
amount  of  an  execution,"  stating  it,  and  that  the  "  plaintirt'  had 
unjustly  taken  and  detained  it,"  and  assessing  damages  is  suffi- 
cient, though  it  ought  to  determine  the  general  ownership." 

§  753.  The  verdict  may  be  general  if  it  cover  all  the 
issues.  When  the  verdict,  by  its  terms,  necessarily  disposes  of 
all  the  material  issues  in  the  case,  an  express  finding  upon  all  the 
separate  issues  may  not  be  essential.  When  the  defendant  pleads 
property  in  himself,  and  property  in  A.,  and  in  a  stranger,  a  find- 
ing of  property  in  the  defendant,  upon  the  first  plea,  is  sufficient, 
though  the  others  are  disregarded.'*  The  jury  may  sometimes 
deliver  a  general  verdict,  embracing  all  the  issues  submitted,  and 
such  verdict  is  clear  and  explicit  upon  them  all.  Thus,  when  the 
ple;is  are  non  cepit,  non  detinef,  property  in  defendant,  and  prop- 
erty in  third  person,  a  general  verdict,  "we,  the  jury,  find  the 
issues  for  the  defendant,"  is  equivalent  to  a  finding  of  all  the 
issues  for  the  defendant.  It  is  not  simply  equivalent  to  a  venlict 
of  not  guilty.  The  verdict  of  not  guilty  would  be  responsive  only 
to  the  pleas  of  non  cepit  and  non  detinet."  Where  the  answer 
wa.s,  first,  general  denial ;  second,  property  in  defendant ;  and 
third,  j)ropcrty  in  a  stranger,  the  verdict  was,  "  we  find  for  the 
plaintiff,  that  he  is  entitled  to  possession,  and  find  value  to  be 
iri5."  J/e/d,  sufficient  to  cover  all  the  issues.'"  When  the  ver- 
dict was  for  the  defendant.,  ♦'J>(.7r),  on  ;i  pUM  of  property,  it  was, 
in  effect,  a  verdict  for  the  defendant  generally,  and  a  judgment 

»♦  Wittick  V.  Traun,  27  Ala.  560.  To  s;irno  effect,  see  Stoltz  v.  The  Peo- 
ple, 4  Scam.  (111.)  UW;  Clark  v.  Keith,  9  Ohio,  73  ;  Hotohkis-s  r.  Ashley. 
44  Vt.  198;  Brown  v.  Smith,  1  N.  II.  :m. 

"  Single  V.  Rirn-inl,  29  Wis.  4<{:{  ;   White  r.  Jones.  .3;<  111.  101. 

»♦  Ilamney  r.  Wjiters,  1  Mo,  400  ;  Kiiiilkiur  r.  Meyerrt,  6  Neb.  lir..  Seo 
Freas  r.  I^ke,  2  Col.  4H0. 

"  FreJiH  V.  I^jik.'.  2  Col.  480  ;  Uiiderwoo.l  v.  Wliite,  4r»  111.  4.»H.  W<^  (imi 
for  tlie  filiiintifT,  and  a^^innt  the  ilcfcndunt,  wuh  Hiidlcicnt.  KriiUKe  v. 
CutlinK.  28  Wis.  O-'i.'i :  S.  C.,  32  Wis.  OW  ;  KhodoH  v.  liuut»,  21  Wend.  19; 
Wheat  V.  Catterlin,  2:{  Ind.  Kl. 

"  Clark  V.  Heck.  17  Ind.  (Hurr J  281. 


628  THE  LAW  OF  REPLEVIN. 

for  return,  with  costs,  was  correct.''  A  contrary  conclusion,  iiow- 
ever,  on  a  sinnlar  finding,  was  reached  in  Towa.  It  was  for  tlie 
defendant,  for  *r)0,  and  was  said  to  be  a  verdict  that  the  plaintilf 
was  entitled  to  the  property  upon  paying  tlie  defendant  that 
sum.*" 

§  754.  The  same.  Illustrations.  "When  the  plaintiff  al- 
leged that  he  was  the  absolute  owner,  and  entitled  to  the  imme- 
diate possession  of  the  property,  and  the  verdict  was,  "  we,  the 
jury,  find  for  the  plaintifl',''  it  was  held  sutlic-ient  to  warrant  judg- 
ment for  the  plaintiff.  The  verdict  was  to  the  effect  that  the 
plaintiff  was  the  absolute  owner,  and  entitled  to  the  immediate 
possession;*'  but  a  general  verdict  cannot  be  sustained  when  the 
issues  are  conflicting,  and  when  all  cannot  be  truly  found  for  one 
party  or  the  other.*'  Wlien  those  issues  are  submitted,  the  jury 
should  find  whether  the  party  has  title  to  the  property  on  the 
right  of  possession  only.** 

§  755.  Verdict  should  not  merge  different  issues.  The 
verdict  should  not  amalgamate  different  issues,  unless  it  be  clear 
that  such  a  verdict  will  be  responsive  to  all  of  them,  and  that  it 
will  give  the  court  clear  and  unmistakable  information  of  what 
the  jury  intended  to  find  upon  each.  Thus,  the  jury  should  not 
amalgamate  damages  for  the  taking  or  detention  of  property  with 
the  value  of  the  property  taken.  Each  should  be  found  separate- 
ly ;**  otherwise,  the  court  cannot  tell  from  the  verdict  what  judg- 
ment to  render.**  Where  the  declaration  contains  a  sufficient 
cause  of  action  properly  stated,  with  other  matter  not  actionable, 
and  damages  are  awarded,  it  will  be  presumed  that  the  damages 
were  given  on  the  actionable  part  only.     Thus,  the  declaration 

•"  Huston  V.  Wilson,  3  Watts.  287. 

*>  Hunt  V.  Bennett.  4  Greene,  (Iowa,)  512. 

3'  Rowan  v.  Teague,  24  Ind.  304. 

32  Hewson  v.  Saffin,  7  Ohio,  Pt.  2,  234 ;  Johnson  v.  Howe,  2  Gilm.  346. 

3'  Wolf  V.  Meyer,  12  Ohio  St.  432  ;  Vordict  that  the  plaintiff  istheo%vner, 
and  lawfully  entitled  to  possession  of  the  logs  described  in  the  complaint, 
and  that  their  value  is  $— ,  and  tlie  plaintiff's  damages  are  § — ,  is  a  gen- 
eral verdict  for  the  plaintiff,  and  is  equivalent  to  a  special  finding  that  the 
logs  were  detained  by  the  defendant.  Eldred  v.  The  Oconto  Co.,  33  Wis. 
137.  To  same  effect,  see  Stephens  v.  Scott,  13  Ind.  515.  Compare  Swain 
V.  Roys,  4  Wis.  150. 

"  Nashville  Ins.  Co.  v.  Alexander,  10  Humph.  383 ;  Sayers  v.  Holmes,  3 
Cold.  (Tenn.)  259. 

"  Carson  v.  Applegarth,  6  Nev.  188. 


THE  VERDICT  AND  JUDGMENT.  629 

"was  for  one  table,  chest  and  other  articles  specified,  and  for  one- 
third  of  four  sticks  of  fodder.  The  verdict  was  for  the  plaintitf, 
and  damages  assessed  at  §91.  Tlie  court  refused  to  disturb  the 
verdict,  presuming  that  the  damages  were  assessed  on  the  articles 
specified  and  not  on  the  two-thirds  jKirt  of  the  fodder.'" 

§  756.  Separate  defendants  may  have  separate  verdicts. 
When  there  are  several  defendants,  it  is  ei'ror  to  assume  that  all 
of  them  are  guilty  of  the  acts  charged  in  the  declaration ;  the  jury 
should  be  left  to  say  whether  all  were  engaged  in  the  acts  com- 
plained of  or  not,-'"  and  they  may  find  one  or  more  of  the  defend- 
ants guilty  and  acquit  others ;  ^^  or  may  find  one  guilty  as  to  a 
portion  and  not  guilty  as  to  other  portions  of  the  property." 

§  757.  Verdict  must  be  certain.  The  verdict  must  be  cer- 
tain. When  four  hogs  were  replevied,  and  the  jury  found  two 
of  them  to  be  the  property  of  the  plaintitt\  without  stating  which 
two,  the  verdict  was  regarded  as  uncertain  and  insufficient.*"  Ver- 
dict describing  the  property  as  "  said  property,"  if  the  goods  are 
sufficiently  described  in  the  declaration,  is  good."  When  the  jury 
found  for  the  plaintitt's  $5,619.37,  and  in  the  verdict  stated  that 
this  amount,  less  the  advances  and  commissions,  was  due  the 
plaintiff,  without  finding  what  those  advances  and  commissions 
were,  the  verdict  was  uncertain,  and  no  judgment  could  be  rend- 
ered on  it."  Wlien  the  issue  was  non  detinet  and  title  to  tiie 
property  in  the  defendant,  a  verdict  for  defendant  when  the  jury 
assessed  value  of  property  and  nominal  damages,  did  not  warrant 
a  general  judgment  for  the  defendant,  though  it  was  doubtless  pro- 
per for  the  court  to  put  it  in  form." 

§  758.  The  same.  Illustrations.  When  but  one  is.sue  is 
presented  in  the  pleadings,  a  general  verdict  for  plaintitt",  as- 
sessing damages  and  value  of  the  property  separately,  is  suffi- 


**  EUiH  V.  Culver.  1  liar.  (Del.)  76. 

"  Dartr.  Horn.  UO  III.  213. 

*"  Carothers  r.  Van  Ha^.-in,  2  (i.  ftroeno,  (Iowa.)  4«1  ;  Hotchkisa  i'. 
Aflhley,  44  Vt.  I'.J'J  ;   Wil.leriuan  v.  Sari<lu.sky.  15  III.  00. 

**  Simi>s<»n  r.  iVrrv.  M  Geo.  Um  ;  Wiilker  v.  Hunter,  5  Cnincli.  C.  C.  402. 

♦"  MiKJictU;  V.  WanU'SH,  1  Col.  225  ;  Campbell  r.  Jones,  38  Cal.  507  ; 
Dfjwell  V.  UiclmnlKon,  10  IikI.  .573. 

*'  Andorwjn  r.  I.4ine,  32  Ind.  102. 

♦' Woo«l  V.  Orser,  11  Snnth,  (25  N.  Y.)  348.  See,  also,  Donaldson  i». 
Johnnon,  2  Chan<l.  (Wis.)  10^). 

**  DonaldHon  v.  Johnson,  2  Cliand.  (Wjg.)  100. 


630  THE  LAW  OF  REPLEVIN. 

cient."  So  a  verdict  that  the  property  belonged  to  the  plaintiff, 
and  that  he  should  recover  one  cent  damages  for  detention  was  a 
surticient  linding  that  the  plaintiff  was  entitled  to  possession/* 

§  759.  Must  be  consistent.  The  verdict  must  not  ho  incon- 
sistent with  itself;  the  findings  upon  the  separate  issues  })r(!sented 
must  be  such  as  will  be  consistent  with  each  other,  and  such  as 
can  be  carried  into  effect  in  a  judgment.  There  was  a  complaint 
against  A.  and  B.  A.  pleaded  property  in  a  stranger  ;  B.  pleaded 
it  in  himself.  The  jury  found  a  verdict  as  follows  :  "  We,  the 
jury,  find  for  the  defendants."  The  verdict,  being  general,  was 
regarded  as  inconsistent  and  repugnant ;  the  property,  according 
to  the  letter  of  the  finding,  was  in  a  stranger,  and  at  tlie  same 
time  in  one  of  the  defendants  ;  this  was  impossible.  The  court 
intimated,  however,  that  if  the  parties  Avere  to  treat  it  as  a  general 
finding  for  the  defendants  npon  the  question  of  wrongful  taking 
only,  it  might  be  sufficient  upon  that  issue,  but  it  would  not  au- 
thorize judgment  for  a  return.**  If  there  be  a  material  repugnan- 
cy in  the  verdict,  it  is  not  competent  for  the  court  to  decide  which 
is  true  and  which  is  false ;  if  it  were  the  court  could  substitute 
its  judgment  for  that  of  the  jury  ;  in  such  cases  it  can  only  set 
the  verdict  aside." 

§  760.  Value  of  property  ;  when  must  be  found.  The 
rules  in  some  of  the  States  require  the  jury  to  find  tlie  value  of 
the  property  ;  *^  but  the  fact  that  they  did  not  so  find  should  be 
taken  advantage  of  at  the  first  opportunity.*'  The  verdict  must 
find  both  the  value  and  the  damages  for  detention,  or  it  is  doubt- 
ful if  any  judgment  can  be  rendered  upon  it ; '^^    even  when  the 


"  Everit  v.  Walworth  Co.  Bank.  13  Wis.  419;  Fitzer  v.  McCannan,  14 
AV is.  63  ;  Wheat  v.  Catterlin,  23  Iiid.  88. 

«  Stephens  v.  Scott,  13  Ind.  515  ;  Gotloflf  v.  Henry,  14  111.  384. 

*«  Tardy  v.  Howard,  12  Ind.  404  ;  Hewson  v.  Saffin,  7  Ohio,  pt.  II.  234; 
Contra,  Edelen  v.  Tliompson,  2  Har.  &  G.  (Md.)  31. 

«  Hewson  v.  Saffin,  7  Hani.  (Ohio,)  pt.  II.  232  ;  Barrett  v.  Hall,  1  Mas. 
447. 

••«  Everit  v.  Walworth  Co.  Bank,  13  Wis.  419  ;  Fitzer  v.  McCannan,  14 
Wis.  63  ;  Wallace  v.  Hilliard,  7  W^is.  627  ;  Farmers'  L.  &  T.  Co.  v.  Com. 
Bank,  15  Wis.  424.  Even  though  not  denied.  Jenkins  v.  Steanka,  19 
Wis.  126;  Carson  i'.  Applegarth.  0  Nev.  188;  Lambert  v.  McFarland,  2 
Nev.  58  ;  Pickett  V.  Bridges,  10  Humph.  (Tenn.)  175  ;  Bates  v.  Buchanan, 
2  Bush.  (Ky.)  117  ;  Young  v.  Par.sons,  2  Met.  (Ky.)  499. 

«  Watts  V.  Green,  30  Ind.  99. 

^0  Wallace  v.  Hilliard,  7  Wis.  627. 


THE  VERDICT  AND  JUDGMENT.  631 

defendant  waives  a  return,  the  value  should  be  found."  In  other 
States,  and  by  the  coniTuon  law,  the  value  is  iimnaterial. 

§761.  Value  of  separate  articles.  Tn  many  «»f  the  States 
the  jury  are  required  to  tind  tlie  value  of  each  si'pirate  ailicle,  so 
that  upon  a  return  of  part  of  the  entire  lot  the  defendant  may  be 
discharged  from  the  payment  of  the  value  of  that  part."  This 
provision  is  intended  for  the  benefit  of  the  party  wIk)  is  adjudged 
to  deliver  the  goods,  so  that  he  may  not  be  conipelled  to  deliver 
goods  and  at  the  same  time  pay  the  value ;  and  objection  to  a 
verdict,  when  the  value  of  several  articles  is  assessed  in  one  gross 
sum,  must  be  taken  at  the  earliest  practicable  moment.  This 
rule  is  in  force  in  many  States,  but  is  not  universal. 

§  7G2.  Conditional  verdict.  A  verdict  that  is  conditional 
upon  some  subsequent  act  of  the  party  is  not  warranted."  So 
one  which  expresses  an  opinion  of  law  without  deciding  questions 
of  fact  cannot  be  sustained.''* 

§  763.  Value  where  the  party's  interest  is  limited.  Tlie 
amount  which  the  defendant  may  recover  is  not  necessarily  the 
full  value  of  the  property ;  when  the  defendant  has  only  a  lim- 
ited interest,  tlie  value  of  that,  and  not  the  full  value,  will  be 
awarded  him.  Thus,  with  an  execution  upon  property  less  than 
its  value,  there  would  only  be  a  claim  to  the  extent  of  the  sum 
for  which  the  execution  issued,  and  interest.^^  Where  property 
is  taken  from  an  officer  by  the  defendant  in  the  execution,  ver- 
dict for  the  officer  should  be  for  the  amount  of  the  execution ; 
but  when  replevied  by  one  who  is  a  stranger  to  the  proces.s,  the 
officer  may  be  liable  over  to  the  defendant  from  whom  it  was 
t;i!:en  ;  in  such  case  the  finding  for  the  officer  should  be  the  full 
value. 

'•  Farmers'  L.  &  T.  Co.  v.  Coin.  IJaiik,  15  Wis.  4,'4. 

'-'  Wliil(i.'l<l  V.  WhitJiel.l,  40  Miss.  :{(•,'.»;  Ilooser  v.  Krucka,  *Ji»  Tex.  4.',!  ; 
E:Hlava  V.  Dillilimil.  4t5  Ala.  GUM;  Draiie  r.  Ililziieiiii,  1:5  S.  &  M.  (Miss.) 
'i'M  ;  Caldwi-ll  v.  H^ll^!J;,'l•nllall.  4  Minn.  270  ;  ricUett  v.  HridKt's,  lOlluuipli. 
(Teiin.)  175.     Cinitni.  Ward  v.  MasttTson.  10  Kan.  7H. 

"  V'urilict  tliat  tin*  plaint  iff  wasentitleil  to  tlie  pr<>p«'rty  pmvidfil  a  cliat- 
U:\  rnort^cani"  was  not  p:iid  in  tau  ilays.     Uoso  r.  Tolly,  IT*  Wis.  44M. 

"  Verdict  was  :  "  We  Hiid  tii'-  plaintiff  liud  a  ri^lit  to  n-pli-vy  tin-  mill.'* 
Held,  to  amount  only  to  ii  (HjnchiHion  of  hiw,  which  the  jnry  liiid  no  au- 
thority to  de«tide  ;  jud){iiunt  couhi  not  he  rendered  n|M>n  it.  Kflhr  v. 
K«.atinan.  49  Inrl.  lOS. 

"15o<.th  V.  Ahleman,  20  Witt.  21  ;  S.  C,  'JO  Wi.s.  GO.'t ;  Single  r.  Mainar.i, 
29  WiH.  46.i. 


€32  THE  LAW  OF  REPLEVIN. 

§  764.     Verdict  for  damages  ;  when  essential.     In  McKean 

V.  Cutler,  48  N.  II.  372,  it  wus  .suid  that  a  verdict  for  plaintiff 
upon  a  question  of  title  will  not  be  set  aside  because  the  jury  did 
not  find  damages  ;  the  jiidgnient  for  damages  is  not  a  necessary 
ingredient  in  replevin.  This  case  is  entitled  to  the  more  weight 
because  it  considers  and  differs  from  Kendall  v.  Fitts,  2  Foster, 
(N.  H.)  9,  and  because  in  this  way  the  question  was  directly  and 
forcibly  presented,  as  to  whether  a  judgment  for  damages  is  an 
essential  one  in  replevin.  It  is  probable,  however,  that  the  courts 
will  not  extend  the  doctrine  laid  down  in  McKean  v.  Cutler.  It 
must  be  borne  in  mind  that  damage  is  one  of  the  principal  ques- 
tions in  replevin  ;  that  it  is  always  claimed  in  the  declaration.-'* 
And  when  with  this,  is  considered  tlie  fact  that  all  the  issues 
presented  must  be  passed  upon,  it  will  seem  the  better  course  to 
insist  upon  a  verdict  and  final  judgment  for  damages  (nominal  in 
amount,  if  no  more),  in  all  cases. 

§  7G5.  The  same.  When  damages  other  than  nominal  are 
awarded,  they  must,  in  all  cases,  be  assessed  by  a  jury,"  unless 
by  consent  of  parties  a  jury  is  waived. 

"  Buckley  v.  Buckley,  12  Nev.  423  ;    ^aget  v.  Brayton,  2  H.  &  J.  (Md.) 
350. 
*'  Pearsons  \\  Eaton,  18  Mich.  80. 

Note  XXXIIL  Yerdict,  in  General. — The  findings  or  verdict  must  be 
upon  the  ultimate,  and  not  the  probative,  facts;  findings  of  the  proba- 
tive facts  will  support  a  judgment  only  when  the  ultimate  facts  are 
necessarily  deducible  therefrom,  Murphy  v.  Bennett,  68  Calif.  529,  9  Pac. 
738.  A  finding  that  "  plaintiff  at,  etc.,  was  the  owner,"  is  the  finding 
of  an  ultimate  fact,  and  not  a  conclusion  of  law.  Id.  Upon  such  a  find- 
ing it  is  not  prejudicial  error  that  the  court  fails  to  find  upon  affirma- 
tive defences  set  up  by  the  answer,  Id.  There  is  no  propriety  in  re- 
quiring in  the  verdict  any  direction  for  the  delivery  of  the  goods; 
this  direction  is  to  be  contained  in  the  judgment  only,  Ryan  v.  Fitz- 
gerald, 87  Calif.  345,  25  Pac.  546.  There  may  be  a  verdict  in  favor  of 
one  defendant  and  against  the  other.  Wall  v.  Demithiewicz,  9  Ap.  D.  C. 
109;  and  one  defendant  may  be  liable  for  all  the  goods  and  judgment 
go  against  the  other  for  a  part  only.  Id.  The  verdict  must  conform 
to  the  statute.  If  the  statute  require  it  to  be  in  the  alternative  the 
subsequent  action  of  the  defendant  in  waiving  his  claim  to  the  goods 
and  accepting  the  value,  does  not  supply  the  defect  of  the  verdict, 
Thompson  v.  Lee,  19  S.  C.  489.  But  where  the  record  shows  that  the 
goods  cannot  be  returned,  and  there  is  an  agreement  as  to  the  value 
there  is  no  occasion  for  an  alternative  verdict,  Noble  v.  Worthy,  1  Ind. 


THE  VERDICT  AND  JUDGMENT.  635 

T.  458,  45  S.  W.  137.  In  Ulrich  v.  McConaughey,  G3  Neb.  10,  88  N.  W. 
150,  it  was  held  that  notwithstanding  the  impossibility  to  return  the 
goods,  the  jury  must  still  observe  the  statutory  directions  as  to  the 
verdict,  but  that  defects  of  form  will  not  be  fatal  unless  prejudicial. 
A  verdict  will  not  be  rejected  because  informal  or  containing  im- 
material matter,  Baum  Company  v.  Union  Savings  Bank,  50  Neb.  387, 
69  N.  W.  939.  A  verdict  is  not  defective  because  the  damages  and 
the  value  are  reported  separately,  Baum  Co.  v.  Union  Savings  Bank, 
supra.  In  Mix  v.  Kepner,  81  Mo.  93,  it  was  held  that  this  was  the 
only  proper  form  in  which  the  assessment  should  be  made. 

Must  Conform  to  the  Issues  and  Find  all  the  Issues. — The  verdict  is 
bad  if  it  varies  from  the  issue  in  a  substantial  matter;  or  finds  but 
part  of  the  issue.  Holt  v.  Van  Eps,  1  Dak.  206,  46  N.  W.  689.  The  ver- 
dict must  find  the  whole  issue,  Cooke  v.  Aguirre,  86  Calif.  479.  25  Pac. 
5;  and  as  to  all  of  the  goods  in  controversy,  Young  v.  Lego,  38  Wis.  206; 
even  as  to  goods  which  are  not  replevied.  Carrier  v.  Carrier,  71  Wis. 
Ill,  36  N.  W.  626;  Hews  r.  Walls,  27  Ills.  Ap.  445;  must  dispose  of 
all  the  issues  as  to  all  the  defendants.  Miller  v.  Bryden,  34  Mo.  Ap.  602. 
Where  the  answer  denies  the  ownership  a  verJict  finding  only  that 
plaintiff  is  entitled  to  possession,  the  value,  and  his  damages,  is  de- 
fective; no  judgment  can  be  given.  Holt  v.  Van  Eps,  supra;  Yick  Kee  v. 
Dunbar,  20  Ore.  416,  26  Pac.  275.  A  verdict  "  we  find  the  property 
to  be  in  the  plaintiff"  is  defective,  for  failing  to  find  either  the 
taking  or  the  detention  by  the  defendant.  Huff  v.  Gilbert,  4  Blf.  19.  A 
verdict  of  not  guilty  of  the  detention,  merely,  leaves  undetermined  the 
question  of  the  right  of  possession,  Smith  Co.  v.  Holden,  73  Vt.  396,  51 
Atl.  2.  Where  a  mortgage  of  chattels  is  a  mere  lien,  the  verdict  that 
the  mortgagee  had  at  the  commencement  of  the  action,  "  the  right 
of  property  and  right  of  possession,"  and  assessing  his  damages,  is 
not  responsive  to  the  issues,  Hayes  v.  Slobodney,  54  Neb.  511,  74  N.  W. 
961.  Where  a  portion  of  the  goods  are  not  replevied  a  verdict  that  the 
right  of  property  is  in  the  plaintiff,  and  assessing  his  damages  in  a 
sum  named,  for  the  goods  not  obtained,  is  defective  for  want  of  a 
finding  of  guilty  or  not  guiky  of  the  conversion  of  the  goods  not  re- 
plevied. Nelson  v.  Bowen,  15  Ills.  Ap.  477.  The  statute  provided  that 
the  general  Issue  should  put  in  issue  not  only  the  detention  of  the 
goods,  but  the  plaintiff's  property  and  right  of  possession;  verdict  that 
defendant  "  did  not  unlawfully  detain  the  goods,"  held  defective, 
Harris  i'.  O'Gorman.  118  Mich.  553.  77  N.  W.  12.  It  does  not  ex- 
pressly appear  in  this  report  what  plea  was  pleaded.  The  verdict  need 
not  expressly  de(  lare  that  the  detention  w:ih  wrongful,  in  ordor  to 
sustain  an  award  of  nominal  damaKCK.  Hatnniurid  v.  Sulliduy,  8  Colo. 
610.  A  vf-rdlct  for  plaintiff  must  award  lh«'  1)ohhi'kbIoii  of  the  goods 
to  the  plaintiff,  must  find  the  value,  and  uhhchh  his  damagen  for  the 
detention;  a  verdict  for  a  sum  of  money  merely  will  not  Hupport  a 
Judgment,  Conklln  v.  McCauler,  41  Ap.  DIv.  452,  58  N.  Y.  Sup.  879. 
Where  the  Issue  waa  tried  by  tho  court  and  the  fludlugB  wtrc  wholly 


634  THE  LAW  OF  REPLEVIN. 

against  the  plaintiff's  ownership,  it  was  held  that  he  could  not  com- 
plain that  there  was  no  finding  as  to  the  right  of  possession,  Banning  v. 
Marleau,  133  Calif.  485,  65  Pac.  964,  distinguishing  Cooke  v.  Aguirre, 
86  Calif.  479,  25  Pac.  5,  Fredericks  v.  Tracy,  98  Calif.  658,  33  Pac.  750. 

Certainty  required  in  the  Yerdict. — The  verdict  must  be  full  enough 
to  enable  the  court  to  render  the  proper  judgment.  Alderman  v.  Man- 
chester, 49  Mich.  48,  12  N.  W.  905.  The  maxim  "that  is  certain  which 
can  be  made  certain,"  applies  to  a  verdict  as  well  as  other  writings;  and 
a  verdict  "  for  the  plaintiff  and  the  value  of  the  property  taken  to  be 
$72  and  interest"  is  made  certain  by  reference  to  the  complaint, 
Hobbs  V.  Clark,  53  Ark.  411,  14  S.  W.  652.  Where  several  articles  of 
the  same  character  are  replevied,  and  as  to  a  part  of  them  there  is  a 
verdict  for  the  plaintiff,  and  as  to  the  residue  for  the  defendant,  the 
verdict  must  specify  which  of  these  articles  go  to  each  party,  Carrier 
V.  Carrier,  71  Wis.  Ill,  36  N.  W.  626.  If  the  verdict,  taken  in  con- 
nection with  the  pleadings,  shows  what  the  judgment  should  be,  this 
will  suffice,  Fletcher  v.  Nelson,  6  N.  D.  94,  69  N.  W.  53.  A  verdict  that 
"  plaintiff  was  not,  at  etc.,  or  since,  the  owner,  the  defendant  did  not 
wrongfully  take  and  does  not  wrongfully  detain,  etc.,  that  H.  was 
on,  etc.,  the  owner,  and  defendant,  a  constable,  etc.,  seized  the  same 
by  virtue  of  two  writs  of  attachment  against  H.  duly  issued  by  G.,  a 
justice  of  the  peace,"  not  indicating  whether  plaintiff  was  not  the 
owner  in  any  sense,  or  that  a  sale  by  H.  to  plaintiff  was  void  as 
against  creditors  for  want  of  delivery  and  continued  change  of 
possession,  is  not  sufficiently  specific,  Banning  v.  Marleau,  101  Calif. 
238,  35  Pac.  772.  Upon  a  complaint  alleging  ownership,  and  the  right 
of  possession  a  verdict  "  for  the  plaintiff,  that  at  the  commencement 
of  this  action  plaintiff  was  and  now  is  entitled  to  possession  of  "  the 
goods,  describing  them,  "  of  the  value  of  $750  and  assess  his  damages 
at  one  dollar,"  entitles  the  plaintiff  to  judgment  for  the  full  value, 
the  goods  not  having  been  replevied;  and  the  verdict  is  not  defective 
because  the  full  amount  of  plaintiff's  recovery  is  left  to  computation. 
A  judgment  for  $716  was  affirmed,  Baum  Iron  Co.  v.  Union  Savings 
Bank,  50  Neb.  387,  69  N.  W.  939. 

Construction. — In  construing  the  verdict,  the  court  will  have  re- 
gard to  the  manner  in  which  the  issues  were  submitted  to  the  jury, 
Towne  v.  Liedle,  10  S.  D.  460,  74  N.  W.  232.  Mere  surplusage,  as 
where  the  jury  finds  the  value  unnecessarily,  may  be  rejected,  Lindauer 
V.  Teeter,  41  N.  J.  L.  255,  Van  Meter  v.  Barnett,  119  Ind.  35,  20  N.  E. 
426.  It  seems  that  the  court  may  indulge  in  reasonable  intendments  to 
sustain  the  verdict.  A  verdict  for  a  certain  sum  "  as  damages,"  must 
be  interpreted  to  import  that  the  sum  named  is  the  value  of  the 
goods;  for  otherwise  it  is  no  verdict;  and  the  court  further  indulged 
the  presumption  that  the  plaintiff  had  exercised  his  right  of  election 
to  take  the  value  in  lieu  of  the  goods,  McGriff  v.  Reid,  37  Fla.  51,  19  So. 
339.  And  where  the  verdict  was  for  damages,  generally,  it  was  pre- 
sumed to  include  both  damages  for  the  taking  and  for  the  detention. 


THE  VERDICT  AND  JUDGMENT.  635 

Ryan  r.  Fitzgerald.  87  Calif.  345,  25  Pac.  546.  And  the  verdict  will  be 
construed  with  reference  to  the  legal  presumption  that,  where  the 
goods  are  seized  under  the  writ,  they  were  found  in  defendant's  pos- 
session, Pitts  Works  r.  Young,  6  S.  D.  557,  62  N.  W.  432.  The  findings 
of  the  jury  are  to  be  taken  as  a  whole;  the  inconsistencies  in  one 
passage  may  be  explained  away  by  another,  Meixall  r.  Kirkpatrick,  33 
Kans.  282,  6  Pac.  241.  The  verdict  need  not  be  expressed  formally; 
if  the  meaning  of  the  jury  can  be  ascertained  therefrom,  the  court 
will  mould  it  into  form  and  give  effect,  Lindauer  v.  Teeter,  supra. 
Error  of  form  will  not  be  regarded  if  substantial  justice  is  reached, 
Leonard  v.  McGinnis,  34  Min.  506,  26  N.  W.  733.  In  a  special  ver- 
dict nothing  is  taken  by  intendment,  Peninsula  Co.  v.  Ellis,  20  Ind.  Ap. 
491,  51  N.  E.  105.  Special  findings  are  to  be  reconciled  with  the 
general  finding,  if  possible.  Citizens  Bank  r.  Larabee,  64  Kans.  158,  67 
Pac.  546.  A  verdict  "  for  the  plaintiffs  and  that  the  goods,  etc.,  are 
and  were,  etc.,  wrongfully  detained  by  the  defendant  from,  etc.,"  is 
equivalent  to  a  special  finding  of  property  in  the  plaintiff.  Goldsmith 
r.  Bryant,  26  Wis.  34.  Where  the  plaintiff  has  exercised  his  option 
to  take  the  value  instead  of  the  goods,  a  return  of  "  guilty  and  assess 
his  damages  at,  etc.,"  is  sufficient,  Jeffreys  v.  Greely,  20  Fla.  819.  In 
an  action  commenced  before  a  justice,  where  the  issues  are  formed  by 
implication,  a  general  verdict  of  guilty  is  a  finding  upon  all  the  issues 
in  the  action  when  turned  into  an  action  of  trover.  Nelson  i\  Bowen, 
1.^  Ills.  Ap.  477.  But  a  verdict  "we  find  the  right  of  property  in  the 
plaintiff  and  assess  his  damages  at,  etc.,  for  detention  of  goods  not 
obtained,"  does  not  find  the  defendant  guilty  of  anything,  and  is  de- 
fective. Id.  Where,  upon  plea  of  property  in  the  defendant  the  verdict 
was  "  for  the  plaintiff  and  assess  the  damages  at  $300  and  interest 
$111,  total  $411,"  it  was  held  that  the  verdict  was  insufficient  in  not 
finding  the  issue  of  property  in  the  defendant,  Jones  v.  Snider,  8  Ore. 
127.  And  where  the  verdict  was  that  at  .the  commencement  of  the 
suit  the  right  of  the  property  in  the  goods  and  possession  thereto  was 
in  the  plaintiff,  assessing  his  damages  at,  etc.,  is  fatally  defective  in  not 
responding  to  the  issue  upon  the  plea  of  non  detiuet,  though  it  seems 
that  If  the  jury  had  awarded  damages  "  for  the  detention  "  it  might 
have  been  supported,  Reidenoor  r.  Beekman,  68  Ind.  236.  A  verdict 
'•  for  the  plaintiff,  property  to  the  value  of  $477  and  damages  to  the 
amount  of  $100,"  will  not  sustain  a  judgment  for  possession  of  any 
specific  property,  Holliday  r.  MiKinne,  22  Fla.  IfjS.  Even  where  the 
pleadings  show  that  the  goods  have  been  sold  by  the  defendant  under 
prorfHS,  a  verdict  "  for  the  plaintiff  in  the  Kum  of  $512,"  Is  not  suffl- 
clent.  Smith  v.  Smith.  17  Ore.  444.  21  Pac  439.  But  a  verdict  "wo 
do  aHHesB  the  damageB  of  the  property  mentioned  In  the  declaration 
at  $S25,  and  the  actual  damages  at  hIx  per  cent,  per  annum  to  be 
$24  7.'),"  WEM  held  lntelligih|(>  and  Kufllcli-nt,  though  Informal,  Itrannin  t>. 
Bremen,  2  N.  M.  40.  Where  tin*  defcn<lant  pli'aded  tion  rr/xf,  nan  drt- 
inet,  and   pro[>erty   In   hiniKeJf,  a  verdict  of  guilty,  and   aHHeBHlng  tho 


636  THE  LAW  OF  REPLEVIN. 

plaintiff's  damages,  was  held  to  comprehend  all  the  issues.  Goldstein 
V.  Smith,  85  Ills.  Ap.  588.  A  verdict  "we  find  the  issues  for  the  de- 
fendants and  assess  their  damages  at,  etc.,"  answers  the  issues  upon 
the  pleas  of  non  detinet,  property  in  the  defendant,  and  rightful  pos- 
session in  the  defendant  by  virtue  of  an  agister's  lien.  Holmes  v. 
Tarble,  77  Ills.  App.  114.  The  court  found  "  that  on,  etc.,  plaintiff  was 
not  nor  at  any  time  since  has  been  the  owner  of  and  entitled  to  posses- 
sion, etc.,  that  defendant  did  not  wrongfully  come  into  possession  there- 
of and  does  not  wrongfully  detain  the  same,  that  defendant,  a  con- 
stable, seized  the  goods  by  virtue  of  two  writs  of  attachment,  described, 
against  one  H,  who  was  then  the  owner  and  in  possession,"  etc.  The 
controversy  being  as  to  the  purchase  of  the  goods  by  plaintiff  from  H., 
and  whether  it  was  fraudulent  as  against  the  creditors  of  H,  and 
whether  there  had  been  a  sufficient  delivery  and  continued  change  of 
possession,  it  was  held  on  appeal  that  these  findings  were  not  specific 
enough  to  show  whether  the  court  below  determined  that  plaintiff  was 
not  the  owner  in  any  sense,  or  that  the  sale  by  H.  was  fraudulent  as 
against  creditors,  merely  for  want  of  delivery  and  continued  change 
of  possession,  Banning  v.  Marleau,  101  Calif.  238,  35  Pac.  732.  Plain- 
tiff committed  a  wagon  wheel  to  defendant  for  repairs;  defendant  made 
the  repairs  and  demanded  $1.75  as  the  agreed  price  for  his  work; 
plaintiff  insisted  that  the  price  agreed  upon  was  only  seventy-five  cents, 
which  he  tendered,  and  replevied  the  wheel.  The  verdict  was  that  "  Mr. 
Smith  pay  Dinneen  seventy-five  cents  and  take  his  wheel."  Held,  that  it 
was  impossible  to  determine  whether  the  jury  intended  that  defendant 
should  be  satisfied  with  the  seventy-five  cents  already  paid  into  court  for 
his  benefit,  or  that  plaintiff  should  pay  another  seventy-five  cents;  or 
whether  in  the  opinion  of  the  jury  there  had  been  an  unlawful  detention 
of  the  wheel  or  not.  Smith  v.  Dinneen,  61  Ap.  Div.  264,  70  N.  Y.  Sup. 
477.  In  replevin  by  mortgagee,  the  verdict  was  "  that  the  right  of  prop- 
erty and  possession  of  said  property  was  in  plaintiff  when  the  action 
was  commenced,  and  that  the  value  of  this  right  was  $117.17."  The  jury 
also  made  a  special  finding  that  the  value  of  the  property  was  $160. 
The  sum  named  in  the  verdict,  $117.17,  was  in  fact  the  amount  due 
plaintiff  upon  his  mortgage.  It  was  held  that  while  the  verdict  was 
erroneous  in  finding  the  general  right  of  property  in  the  plaintiff, 
when  in  fact  he  had  only  a  special  property,  the  error  was  corrected 
by  the  finding  of  the  right  of  possession  in  plaintiff,  MuUer  v.  Purcel, 
Neb.,  99  N.  W.  684.  A  verdict  "  for  the  plaintiff  and  against  the  de- 
fendant," assessing  his  damages  at  $78,  is  unmistakable  in  its  intent, 
and  is  sufficient,  no  objection  to  the  form  being  interposed  when 
returned,  Towne  v.  Liedle,  10  S.  D.  460,  74  N.  W.  232.  Where  the  de- 
fendant is  an  officer  and  justifies  the  taking  under  a  process  against  a 
third  person  alleged  to  be  the  owner,  a  finding  of  property  in  the  officer 
is  erroneous,  Gilligan  v.  Stevens,  43  Ills.  Ap.  401.  Where  the  goods  have 
been  replevied  from  defendant's  possession  a  finding  that  plaintiff 
was  not  entitled  to  possession,  is  necessarily  a  finding  that  defendant 


THE  VERDICT  AND  JUDGMENT.  637 

was  so  entitled,  Pico  v.  Pico,  56  Calif.  453.  Where  the  plaintiff  has 
possession  of  the  goods  a  verdict  in  his  favor  and  assessing  the 
damages  at  a  sum  certain,  is  sufiBcient,  Williams  v.  Bugg,  10  Mo.  Ap. 
585.  A  verdict  finding  the  property  in  the  plaintiff,  omitting  any 
finding  upon  the  plea  of  property  in  a  third  person  in  whom  de- 
fendant has  also  pleaded  property,  is  sufficient.  Thompson  v.  Dyer,  25 
R.  I.  321,  55  Atl.  824.  Controversy  as  to  twenty-six  head  of  cattle  claimed 
by  each  party  under  chattel  mortgages;  there  was  a  general  verdict 
for  the  plaintiff.  The  jury  in  answer  to  special  interrogatories  declared 
that  twenty  head  of  the  cattle  claimed  by  the  defendant  were  not  in- 
cluded in  his  mortgage,  and  that  the  twenty-six  head  were  included  in 
the  mortgage  to  the  plaintiff.  It  was  held  that  although  the  jury  had, 
in  answer  to  other  interrogatories,  assumed  to  give  a  description  which 
was  irreconcilable  with  the  general  finding,  it  was  the  duty  of  the  court 
to  enter  judgment  for  the  plaintiff  upon  the  general  finding,  Citizens 
Bank  v.  Larabee,  64  Kans.  158,  67  Pac.  546. 

Plaintiff  sued  to  recover  goods  procured  upon  credit  by  fraudulent 
representations,  as  they  alleged.  The  purchaser  had  assigned  for 
the  benefit  of  creditors;  verdict,  "the  property  owned  by  Frank  (the 
insolvent)  at  the  time  of  his  purchase  from  plaintiff  exceeded  his 
indebtedness  nearly  $1,000,  that  he  was  not  then  insolvent,  that  when 
he  made  the  purchase  he  did  not  intend  to  nay  for  the  goods,  the 
value  of  the  goods  in  question  was  $300."  The  answer  admitted  de- 
tention of  part  of  the  goods,  and  denied  detention  of  the  residue. 
Held,  that  the  verdict  was  defective  in  not  finding  what  goods  were 
detained  by  defendant,  and  in  not  finding  the  ownership,  Feder  v. 
Daniels,  79  Wis.  578,  48  N.  W.  799.  A  verdict  that  plaintiff  "  at  the 
commencement  of  this  action  was  entitled  to  the  possession  of  the 
property  in  question,  and  that  the  value  thereof  is  $208  and  his  dam- 
ages $395,  sufficiently  declares  that  defendant  was  detaining  the  goods, 
Clouston  V.  Gray,  48  Kans.  31,  28  Pac.  983.  A  verdict  "  we  find  the 
issues  for  the  defendant  and  assess  his  damages  at  $12.50,"  finds  neither 
the  right  of  property,  the  right  of  possession  nor  the  value  of  either. 
No  judgment  can  be  founded  thereon,  Fulkerson  v.  Dinkins,  28  Mo.  Ap. 
160.  Where  defendant  denies  plaintiff's  right  of  possession,  a  verdict 
"  for  the  defendant  one  dollar,"  is  not  sufficient,  and  the  waiver  by 
plaintiff  of  his  claim  does  not  cure  the  defect,  Thompson  r.  IjOo,  19 
8.  C.  489.  A  finding  by  a  justice  of  the  peace  "  that  the  possession 
of  the  property  at  the  beginning  of  this  action  was  in  the  pluintifr 
will  be  construed  according  to  its  plain  import,  that  is,  that  the  goods 
were  not  detained  by  the  defendant,  Degertng  v.  Flick,  14  Neb.  448,  16 
N.  W.  824.  A  verdict  that  the  plaintiff  Ik  the  owner  but  that  the  defend- 
ant did  not  unlawfully  dftalp  the  goodH,  no  more  cntillcH  on«'  of  them 
than  the  other,  to  a  judgment  for  th<*  goodH,  Uodnian  v.  Nathan,  4r) 
Mich.  607.  8  N.  W.  562.  "We  find  for  the  plaintiff  bh  follows:  That 
plaintitr  is  entitled  to  the  Immediate  return  and  pohhchhIoh  of  the  fol- 
lowing articleii,"  Bpecifylng  them  and  giving  the  value  of  each,  la  & 


638  THE  LAW  OF  REPLEVIN. 

sufficient  response  to  every  Issue  in  the  pleadings,  Corbell  v.  Childers, 
17  Ore.  528,  21  Pac.  671.  A  verdict  that  defendant  at  the  institution  of 
the  suit  was  entitled  to  the  possession  of  the  goods,  is,  where  plaintiff 
claims  under  a  chattel  mortgage,  tantamount  to  a  general  verdict 
against  the  validity  of  a  promissory  note  secured  by  the  mortgage, 
Nunn  V.  Bird,  36  Ore.  515,  59  Pac.  808.  A  verdict  that  "  plaintiff,  en- 
titled to  all  the  cotton  and  two  hundred  bushels  of  wheat  raised  on  the 
Holmes  place,  and  defendant  is  entitled  to  the  four  hundred  bushels 
raised  on  the  Everett  place  at  seventy-five  cents  per  bushel,  less  $70 
paid  by  plaintiff  for  harvesting,  threshing  and  seed,  total  amount 
for  defendant  $230."  was  sustained,  Everett  v.  Akins,  8  Okla.  184, 
56  Pac.  1062.  A  finding  that  A.  was  the  owner  at  one  time,  is  with- 
out effect  as  to  his  right  at  a  prior  time,  Henry  v.  Ferguson,  55 
Mich.  399,  21  N.  W.  381.  Where  the  goods  had  been  delivered  to  the 
plaintiff  a  verdict  "  for  the  defendant,  assessing  the  value,"  was 
held  sufficient  to  sustain  a  judgment  for  return  or  for  the  value, 
Echepare  v.  Aguirre,  91  Calif.  288,  27  Pac.  668.  A.  replevied  a  horse 
upon  which  M.  had  levied,  as  the  property  of  D.  There  was  no  ques- 
tion but  that  A.  was  the  owner  if  D.  was  not.  A  verdict  that  A. 
was  the  owner  and  that  M.  had  a  lien  to  the  amount  of  his  levy,  return 
of  the  goods  not  being  waived,  and  there  being  no  finding  of  the  value 
of  the  goods,  was  held  insensible,  Alderman  v.  Manchester,  49  Mich. 
48,  12  N.  W.  905. 

"We  find  judgment  for  plaintiff,  value  of  coal  $546,  damages  in  pur- 
suit of  property  $384,  total  $930."  Held  the  verdict  might  be  construed 
as  a  general  verdict  for  the  plaintiff,  besides  assessing  separately  the 
value  of  the  goods  and  the  damages,  and  a  sufficient  response  to  the  is- 
sues upon  the  plea  of  property,  and  the  right  of  possession,  Cain  v.  Cody, 
29  Pac.  778.  Where  the  action,  no  bond  being  given,  proceeds  as  one 
for  damages  only,  a  verdict  "  for  the  plaintiff,"  and  assessing  the 
damages  answers  the  issues  and  is  sufficient,  Philleo  v.  McDonald,  27 
Neb.  142,  42  N.  W.  904.  A  verdict  for  the  defendant  that  he  was  entitled 
to  possession  of  fhe  goods,  finding  the  value  and  the  damages  for  deten- 
tion, sufficiently  answers  all  the  issues  and  entitles  the  defendant  to  an 
alternative  judgment  for  return  or  the  value,  although  the  defendant 
claimed  only  one  moiety.  The  value  of  defendant's  interest,  the  court 
say,  is  readily  ascertained  by  computation,  Ela  v.  Bankes,  37  Wis.  89. 
A  verdict  for  the  defendant,  finding  also  the  value  of  the  goods,  and  that 
"  plaintiff  is  indebted  to  defendant  in  $189,  which  is  a  lien  on  the  horses," 
is  sufficient  to  sustain  a  judgment  for  the  return  of  the  animals  to  de- 
fendant "  to  be  held  by  him  as  security  for  $189,"  or,  at  defendant's 
election,  for  the  amount  of  the  indebtedness  named,  against  plaintiff 
and  his  sureties.    Kronck  v.  Reid,  105  Mo.  Ap.  430,  79  S.  W.  1001. 

General  Verdict. — A  general  verdict  finds  all  the  issues  for  the  plain- 
tiff, and  determines  that  plaintiff  is  the  owner  of  the  goods  and  entitled 
to  the  possession,  Towne  v.  Liedle.  10  S.  D.  460,  74  N.  W.  232.  Where, 
upon  a  general  and  special  issue  there  is  a  general  verdict  for  the 


THE  VERDICT  AND  JUDGMENT.  G39 

plaintiff,  and  the  matter  of  the  special  plea  is  such  that  if  true  the 
verdict  should  have  been  for  defendant,  the  omission  to  find  upon  the 
special  issue  is  matter  of  form  only,  and  judgment  will  be  entered  for 
the  plaintiff,  Lindauer  v.  Teeter,  41  N.  J.  L.  255.  A  finding  that  the 
goods  were  not  unlawfully  taken  or  detained  by  defendant  is  a  mere 
conclusion  of  law,  and  considered  in  connection  with  special  findings  of 
all  the  facts,  will  be  disregarded.  Aultman  v.  Richardson.  21  Ind.  Ap. 
211,  52  N.  E.  86.  A  general  verdict  for  the  defendant  finds  all  the  is- 
sues, and  even  though  the  value  be  not  found,  judgment  of  return  may 
be  given,  Adamson  v.  Sundby.  51  Minn.  460.  53  N.  W.  761;  Meredith  v. 
Kennard.  1  Neb.  312;  even  although  inconsistent  pleas  are  pleaded. 
Atlas  Co.  V.  Stickney,  70  Ills.  Ap.  176;  but  see  co;i^-a.  Hewson  i'. 
Saffin,  7  Ohio,  part  II,  232;  Mattson  v.  Hanisch,  5  Ills.  Ap.  102;  Dobbins 
V.  Hanchett,  20  Ills.  Ap.  396;  Rohe  v.  Pease,  189  Ills.  207,  59  N.  E.  520. 
Where  the  evidence  shows  that  the  goods  cannot  be  restored  to  the 
plaintiff,  the  defendant  having  retained  them  and  disposed  of  them,  a 
verdict  "for  the  plaintiff"  in  a  sum  named,  is  sufficient;  a  general 
verdict  for  the  plaintiff  is  equivalent  to  a  finding  that  he  was  lawfully 
entitled  to  the  possession,  McNamara  v.  Lyon,  69  Conn.  447,  37  Atl. 
981;  Van  Gundy  v.  Carrigan,  4  Ind.  Ap.  333,  30  N.  E.  933;  is  equiva- 
lent to  finding  that  plaintiff  is  the  owner  and  entitled  to  possession, 
Gaines  v.  White,  1  S.  D.  434,  47  N.  W.  524;  McAfee  v.  Montgomery. 
21  Ind.  Ap.  196.  51  N.  E.  957;  O'Farrell  v.  McClure.  5  Kans.  Ap.  880, 
47  Pac.  160.  Where  two  are  sued  for  the  detention  of  several  articles, 
and  it  appears  that  as  to  a  portion  of  the  goods  one  of  the  defendants 
never  had  them,  and  is  in  no  manner  accountable  for  them,  a  general 
verdict  for  the  plaintiff  is  erroneous,  Norris  v.  Clinkscales,  47  S.  C. 
488,  25  S.  E.  797. 

As  to  the  Property  in  the  Goods. — In  the  absence  of  statutory  re- 
quirement, there  need  be  no  express  finding  as  to  who  has  the  property; 
a  general  finding,  even  where  the  question  of  property  is  the  main  is- 
sue, is  sufficient,  Prescott  v.  Heilner,  13  Ore.  200,  9  Pac.  403.  Rut  this 
issue  must  be  answered;  and  a  verdict  that  plaintiffs  "are  entitled  to" 
a  part  of  the  goods,  and  the  remainder  "  belongs  to  defendants,"  will 
not  support  a  judgment  for  the  plaintiffs,  Phipps  v.  Taylor,  15  Ore.  484, 
16  Pac.  171.  A  finding  of  damages,  merely,  in  favor  of  the  plaintiff 
will  not  support  a  judgment  in  the  alternative,  Norcross  i'.  Nunan.  61 
Calif.  640.  Where,  under  the  pleadings,  the  plaintiff  may  show  only 
a  special  ownership  or  the  right  of  possession,  a  verdi(  t  that  plaintiff 
is  entitled  to  the  posseHsion  merely,  not  finding  the  general  propi-rty. 
is  Bufflclent,  Buck  v.  Young.  1  Ind.  Ap.  558.  27  N.  E.  1106. 

When  must  find  the  Value. — Where,  under  the  statute,  the  successful 
party  is  entitled  to  alternative  judgment  for  the  goods,  or  the  value 
thereof,  the  value  muHt  be  found.  Welton  v.  Haltezoro,  17  Neb.  399.  23 
N.  W.  1;  Chandler  v.  Colcord,  1  Okla.  260,  32  Pac  330;  Dixon  v.  Atkin- 
son, 86  Mo.  Ap.  24;  Goodwin  v.  Pott«-r,  40  Neb.  .^53.  58  N.  W.  1128;  Ault- 
man Co.  V.  .McDonough.  110  Wl«.  263.  85  N.  W.  'Jhi).  WIkt*-  the  KucrcHHfuI 
party  claimH  only  a  Hpeclal  InlereHl,  the  vurdkl  must  fln<l  the  value  of 


640  THE  LAW  OF  REPLEVIN. 

that  interest,  Creighton  v.  Haythorn,  49  Neb.  526,  68  N.  W.  934;  i.  €., 
if  the  successful  party  claims  as  mortgagee,  the  amount  of  the  indebted- 
ness. Earle  v.  Burch,  21  Neb.  702.  23  N.  W.  254;  DeFord  v.  Hutchinson. 
45  Kans.  318.  25  Pac.  641;  GrifTith  v.  Richmond,  126  N.  C.  377,  35  S.  E. 
620;  or  where  the  defendant  is  an  officer  who  has  taken  the  goods  in 
execution,  the  amount  of  his  execution;  the  general  value  need  not  be 
found,  because  immaterial,  Welton  v.  Baltezore,  supra;  Hanson  v. 
Bean,  51  Minn.  546,  53  N.  W.  871.  Where  it  appears  that  the  property 
has  depreciated  in  value  between  the  time  of  the  replevin  and  the 
trial,  the  finding  of  the  present  value  of  defendant's  interest  suffices, 
Heffley  v.  Hunger.  54  Neb.  776,  75  N.  W.  53.  The  verdict  must  find  the 
value,  the  statute  is  mandatory,  Meeker  v.  Johnson,  3  Wash.  247,  28 
Pac.  542,  citing  and  criticising  Morrison  v.  Austin,  14  Wis.  601;  Nicker- 
son  V.  Stage  Co.,  10  Calif.  520,  Levy  v.  Leatherwood,  Ariz.,  52  Pac.  359. 
The  statute  provided  that  if  the  plaintiff  fail,  and  have  the  goods  in 
his  possession,  and  the  defendant  in  his  answer  claims  the  same  and 
demands  return  thereof,  "  the  court  or  jury  may  assess  the  value  of 
the  property,  and  the  damages  for  taking  and  detaining  the  same;  "  it 
was  held  that  the  jury  must  make  the  assessment  if  the  issues  are  tried 
by  a  jury.  In  the  absence  of  such  finding  no  judgment  can  be  given, 
Goodwin  v.  Potter,  supra.  The  value  and  the  damages  should  be  found 
separately.  Mix  v.  Kepner,  81  Mo.  93.  The  requirement  of  the  statute 
that  if  the  defendant  prevails,  and  the  plaintiff  is  in  possessiom  of  the 
property,  the  verdict  must  find  the  value  of  the  goods  as  well  as  the 
damages,  is  for  the  benefit  of  the  defendant,  and  if  he  accepts  the  ver- 
dict assessing  damages  only  he  is  concluded,  Dixon  v.  Atkinson,  86  Mo. 
Ap.  24.  If  the  successful  party  is  already  in  possession  no  injury  is 
done  by  the  omission  of  the  jury  to  find  the  value,  Busching  v.  Sun- 
man,  19  Ind.  Ap.  683,  49  N.  E.  1091;  Samuels  v.  Burnham,  10  Kans.  Ap. 
574,  61  Pac.  755;  Garth  v.  Caldwell,  72  Mo.  622;  Prescott  v.  Heilner,  13 
Ore.  200,  9  Pac.  403;  Hanscom  v.  Burmood,  35  Neb.  504,  53  ^i.  W.  371; 
Van  Gundy  v.  Carrigan,  supra;  Caruthers  v.  Hensley,  90  Calif.  559,  27 
Pac.  411;  Fischer  v.  Cohen,  22  Misc.  117,  48  N.  Y.  Sup.  775;  Hopper 
V.  Hopper,  84  Mo.  Ap.  117.  So,  where  the  thing  replevied  is  an  in- 
surance policy  and  has  been  delivered  into  the  custody  of  the  court, 
there  is  no  need  to  find  its  value,  Harris  v.  Harris,  43  Ark.  535;  and  so 
where  the  defendant  disclaims  all  interest,  and  denies  the  detention, 
Hinchman  v.  Doak,  48  Mich.  168,  12  N.  W.  39. 

Value  of  the  Separate  Articles. — The  defendant  who  has  retained 
the  goods  is  entitled,  if  the  verdict  is  against  him,  to  have  the  value 
of  each  article  specified;  and  it  is  error  to  deny  this,  Hanf  v.  Ford,  37 
Ark.  544;  Hobbs  v.  Clark,  53  Ark.  411,  14  S.  W.  652;  Hoeser  v.  Kraeka, 
£'j  Tex.  450;  Martin  v.  Berry,  Tex.  Civ.  Ap.,  87  S.  W.  712;  Rowland  v. 
Mann,  28  N.  C.  38;  Spratley  v.  Kitchens,  55  Miss.  578;  White  v.  Emblem, 
43  W.  Va.  819,  28  S.  E.  761;  Drane  v.  Hilzheim,  13  Sm.  &  M.  336.  The 
reason  of  the  rule  is  that  the  statute  permits  a  delivery  of  a  portion  of 
the  goods  in  satisfaction  pro  tatito  of  the  judgment  for  return,  Harria 
1-.  Harris,  43  Ark.  535. 


THE  VERDICT  AND  JUDGMENT.  G41 

But  the  party  may  waive  his  right,  and  is  presumed  to  waive  it 
unless  he  demands  such  separate  valuation  in  advance  of  the  verdict,  or 
objects  to  the  verdict  for  the  omission,  before  the  jury  separate.  Hobbs 
V.  Clark,  supra;  First  National  Bank  v.  Calkins,  IG  S.  D.  445,  93  N.  W. 
646;  Johnson  v.  Eraser,  2  Idaho,  404,  18  Pac.  48.  One  who  has  neither 
all'^ged  nor  proved  the  separate  values  cannot  complain,  Brenot  v.  Rob- 
inson, 108  Calif.  143,  41  Pac.  37;  and  there  need  be  no  such  findings 
where  there  is  no  judgment  for  the  value,  Live  Oak  Co.  v.  Ingham,  Tex. 
Civ.  Ap.  44,  S.  W.  588.  And  where  the  defendant  has  disposed  of  all  the 
goods  and  the  jury  find  for  the  plaintiff,  defendant,  is  not  prejudiced 
by  their  failure  to  find  the  separate  value  of  the  different  articles, 
Jones  V.  McQueen,  13  Utah,  178,  45  Pac.  202,  Brady  v.  Cook,  68  Miss. 
636,  10  So.  56.  A  verdict  for  the  defendant  finding  the  aggregate 
value  of  the  goods  will  suflSce  where  the  complaint  alleges  only  the 
aggregate  value.  Black  v.  Hilliker,  130  Calif.  190,  62  Pac.  481.  And 
where  the  plaintiff's  pleadings  gives  the  value  of  each  article,  a  verdict 
which  finds  the  value  "  as  stated  in  the  petition."  is  sufficient,  Lillie  i\ 
McMillan,  52  la.  403,  3  N.  W.  GOl.  Where  the  statute  requires  that  the 
jury  shall  "as  far  as  practicable  assess  the  value  of  each  article  sep- 
arately," a  saw-mill  and  steam-engine  must  be  valued  separately. 
Savage  v.  Russell,  84  Ala.  103,  4  So.  235;  two  mules.  Southern  Co.  v. 
Johnson,  85  Ala.  178.  4  So.  643.  But  the  statute  is  complied  with  where 
articles  of  different  brands  and  different  values  are  set  out  collectively, 
the  value  of  the  individual  article,  and  then  the  value  of  the  class, 
being  given,  Avary  v.  Perry  Co.,  96  Ala.  406,  11  So.  417.  The  rule  must 
in  any  case  be  construed  reasonably.  A  barouche  and  harness  may 
be  valued  as  one;  the  horses  should  be  valued  separately,  Drane  v. 
Ililzheim,  13  Sm.  &  M.  336.  Whatever  may,  according  to  common 
understanding,  be  taken  as  parts  of  one  whole,  may  be  so  taken  in  the 
assessment;  and  it  was  held  thct  the  rule  requiring  separate  valuation 
was  inapplicable  where  the  plaintiff  and  one  of  the  defendants  were 
tenants  in  common  of  a  stock  of  goods,  Kean  v.  Zundelowitz,  9  Tex. 
Civ.  Ap.  350,  29  S.  W.  930.  The  rule  requiring  separate  valuation  has 
no  application  to  a  mare  and  her  colt;  they  constitute  for  this  purpose 
a  single  thing,  Henry  v.  Dillard.  68  Miss.  536,  9  So.  298.  The  omission 
in  the  verdict  may  be  cured  by  the  award  of  a  writ  of  inquiry,  Duane 
V.  Hilzheim,  supra.  In  other  courts  the  rule  requiring  the  separate 
valuation  is  rejected,  unless  such  valuation  is  required  by  the  Btatutc. 
Wall  V.  Demltkiewicz,  9  Ap.  D.  C.  109;  Stevenson  r.  Ixird.  15  Colo.  131. 
25  Pac.  313;  Kellogg  r.  Burr,  126  Calif.  38,  58  Pac.  306.  And  In  Whetmor.- 
V.  Rupe,  65  Calif.  237,  3  Pac.  851;  the  court  Haid  "  we  do  not  agrt'c  that 
the  wrong-doer  may,  through  his  wrongdoing,  accjuin*  the  prlvlh'ge  of 
reHtoring  to  the  owner  a  particular  article  or  paying  lt.s  value  aa  fouml 
by  the  j  :ry  instead."  And  in  Byrne  r.  Lynn.  IH  Tex.  Civ.  A|).  252,  44 
is.  W.  311.  the  court  Bald  that  u  wrong-doer  In  not  to  be  held  to  IiihIhL 
upon  the  separate  valuation  of  different  articles  In  order  that  l.i-  niuy 
keep  a  portion  by  payment. 

DamuijcH. — The  damageH  Bbould  be  auHeBBeU  separately  from  the  valuu 
41 


642  THE  LAW  OF  REPLEVIN. 

§  766.  The  judgment.  Tlu'  jn(l{2:MU'nt  in  replevin,  wlien  the 
court  1ms  jurisdiction  oi  the  persons  and  subject  matter,  is  con- 

of  the  goods.  Mix  r.  Kepner,  81  Mo.  93,  and  the  verdict  should  show 
for  what  the  damages  are  assessed,  Ridcnour  v.  Beekman,  fiS  Ind.  236. 
The  failure  to  assess  damages  to  the  prevailing  party,  cannot  be  as- 
signed as  error  by  the  other,  Prescott  v.  Heilner,  13  Ore.  200,  9  Pac.  403; 
Buck  V.  Young,  1  Ind.  Ap.  558,  27  N.  E.  1106;  Gaines  v.  White,  1  S.  D. 
434,  47  N.  W.  524.  Where  the  statute  prescribes  interest  upon  the 
value  as  the  measure  of  damages  for  the  detention,  the  jury  need  find 
only  the  value;  the  court  may  add  interest  in  the  judgment,  Hall  v.  Till- 
man, 110  N.  C.  220,  14  S.  E.  745.  An  excessive  allowance  of  damages 
may  be  cured  by  a  remittitur,  Hampton  Co.  v.  Sizer,  35  Misc.  391,  71  N. 
Y.  Sup.  990. 

Description  of  the  Goods. — The  description  of  the  goods  need  be  only 
reasonably  certain.  Where  horses  are  replevied  a  description  of  them 
by  pairs  with  the  value  of  each  pair,  is  sufficient,  Prescott  v.  Heilner, 
supra.  Ordinarily  a  verdict  for  defendant  as  to  a  portion  of  the  goods 
must  describe  them;  but  where  the  record  shows  that  the  whole  have 
been  destroyed  by  fire  the  plaintiff  is  not  prejudiced  by  an  omission 
in  this  respect,  Richardson  Drug  Co.  v.  Teasdall,  59  Neb.  150,  80  N.  W. 
488.  A  verdict  which  refers  to  "  the  horses  in  controversy  "  gives  a 
suflBcient  description.  Hopper  v.  Hopper,  84  Mo.  Ap.  117.  Where  the 
property  has  been  destroyed  the  verdict  need  not  describe  it,  Findlay  v. 
Knickerbocker  Co.,  104  Wis.  375,  80  N.  W.  436. 

When  Objections  must  be  Taken — Where  the  statute  provides  that  a 
verdict  not  covering  the  issues  "  may  be  corrected  by  the  jury  under 
the  instructions  of  the  court  or  the  jury  may  be  again  sent  out,"  all  ob- 
jections to  the  verdict  must  be  made  when  it  is  delivered,  Johnson  v. 
Eraser,  2  Idaho,  404,  18  Pac.  48.  A  verdict  returned  by  less  than  a  full 
panel  if  received  without  objection,  must  stand,  Goldstein  v.  Smith,  85 
Ills.  Ap.  588. 

Amendment. — The  verdict  may  be  amended  in  open  court  in  the 
presence  and  by  the  consent  of  the  jury,  even  after  proclamation  of 
adjournment  has  been  commenced,  Kreibohm  v.  Yancey,  154  Mo.  67,  55 
S.  W.  260;  and  even  after  error  brought  the  verdict  may  be  amended 
to  conform  to  the  manifest  purpose  of  the  jury,  Lindauer  v.  Teeter,  41 
N.  J.  L.  255.  The  court  has  an  inherent  power  to  amend  the  verdict. 
Piano  Co.  V.  Person,  12  S.  D.  448,  81  N.  W.  897,  citing  Murphy  v.  Stew- 
art, 2  How.  263,  11  L.  Ed.  261.  Where  the  plaintiff  claims  under  a  mort- 
gage, and  the  fact  of  the  mortgage  and  the  amount  due  upon  it  are  ad- 
mitted by  the  pleadings,  the  court  may  even  after  the  term  and  after 
appeal,  amend  the  verdict  for  the  plaintiff,  by  inserting  the  value  of  his 
interest,  Fletcher  v.  Nelson,  6  N.  D.  94,  69  N.  W.  53.  And  where  the 
verdict  finds  interest  upon  the  value  and  assesses  damages  in  addition, 
in  distinct  sums,  the  court  in  its  judgment  may  reject  either,  Johnson 
V.  Eraser,  supra. 


THE  VERDICT  AND  JUDGMENT.  643 

elusive  upon  all  parties.^"  It  may  determine  the  property,  tlie 
special  property,  or  the  right  of  possession  ;  and  when  so  deter- 
mined the  parties  cannot  setup  or  claim  ditierent  rights  or  inter- 
ests as  against  the  judgment/'*  The  parties  may  have  separate 
interests ;  if  so  the  judgment  should  not  he  joint/"  When  the 
court  has  no  jurisdiction,  itcannot  render  a  judgment  against  tlie 
defendant,  even  for  costs/  ' 

§  7G7.  Should  embrace  all  parties  and  all  issues.  The 
judgment  should  be  for  or  against  all  }»artics;  tiiial  judgnu-nt 
against  part  of  the  defendants  will  not  dispose  of  the  case  as  to 
others,  and  will  be  erroneous.  It  is  equally  important  that  all 
the  parties  should  be  disposed  of  as  that  all  the  issues  should  be." 
The  judgment,  therefore,  should  determine  all  the  issues,  /.  e.,  all 
the  rights  of  all  the  parties  to  all  the  property.*"  It  may  be  good 
as  to  some  defendants,  and  bad  as.  to  others  ;  ®*  but  when  a  writ  of 
replevin  against  two  defendants  is  served  upon  one,  a  judgment 
against  both  is  wholly  void.*'" 

§  708.  The  same.  Where  the  court  without  a  jury  passes 
upon  the  issues  the  judgment  should  determine  all  the  issues 
submitted,  the  same  as  required  with  a  jury.  If  the  judgment  is 
for  the  plaintiff  the  court  should  find  the  value  of  the  property, 
where  that  is  necessary,  and  that  the  plaintifi:  is  the  owner  or  en- 
titled to  its  possession ;  it  should  assess  damages  and  order  a  dts 
livery,  if  that  has  not  been  had  upon  the  writ.  Each  of  these 
steps  are  essential  to4i  valid  judgment.'""* 

§  7G'J.  Must  be  certain.  Where  a  justice  entered  judgment 
as  follows:  "  A  trial  was  liad  and  a  judgment  rendered  ag-.iinst 
the  defendant  for  one  cow,"  it  was  held  not  sufTicicnt.  It  did  n<tt 
find  the  value  of  the  property,  or  that  the  plaintilf  was  entitled 

"Mauls  r.  Wutsoii.  i:{  Mo.  r,44  ;  Pomeroy  u.  Cocker.  4  ChaiKl.  (Wis.)  171  ; 
Lutes  V.  Alpau^li.  ^'•'  N.  J.  I>.  Hi.") ;  IVnnwo  v.  (In'eii,  1  Mo.  771. 

"  Carlloti  V.  Davis.  H  A1I<mi,  94  ;  Witter  v.  Fishi-r,  27  Iowa.  10  ;  Lowe  v. 
L<jwry,  4  Ohio,  7H  ;  IViry  ".  Li-wis,  4U  MisH.  44;{. 

«"  Sweetzer  v.  Mea<l,  O  .Mirli.  107. 

«'  Collamer  v.  Vat^',  IW  Vt.  :W7. 

♦'  barlxiiir  v.  Whit.-.  .'57  111.  KM. 

"  Dow  V.  liattle.  12  111.  'M.i  ;  kos.-  r.  T..il\ ,  IT)  Wis.  4  11  :  I'.Try  v.  L.-wis, 
4U  Mis,s.  44:{. 

«  Mercer  i'.  JaiiifH,  6  N«l».  40<5. 

**  Only  t'.  Divkinntui,  r>  Cold.  (T«nn.)  4Hrt. 

♦•  lU^uuin  V.  Wylii).  I«  Wis.  'M'J  ;  Hat.-s  v.  Wilbur,  10  Wis.  41»i  ;  H..'i..ii 
V.  Beckwith,  1  WiH.  17;  Ik-ckwilli  v.  IMiilleo,  15  WIh.  224. 


644  THE  LAW  OF  REPLEVIN. 

to  possession ;  nor  did  it  assess  the  damages.  It  could  not  be 
read  in  evidence  in  another  ease  for  the  same  eow.*' 

§  770.  Judgment  upon  default.  When  the  plaintiff  failed 
to  appear,  tlie  defendant,  at  common  law,  had  judgment  for  a 
return  and  damages."** 

§771.  When  property  has  been  delivered  plaintiff  can- 
not have  value.  When  the  property  has  been  replevied  and 
delivered  to  the  plaintilT,  of  course  he  cannot  have  judgment  for 
the  value.  He  nmst  take  judgment  for  the  property  in  his  pos- 
session and  such  damages  and  costs  as  he  can  obtain.*' 

§  772.  Judgment  for  value  or  delivery.  Where  the  plain- 
titf  has  not  already  obtained  the  possession  of  the  property  by 
his  writ  or  order  for  delivery,  and  has  judgment  in  his  favor,  the 
form  of  the  judgment  is  for  the  delivery  of  the  goods,  or  for  the 
value  in  case  a  delivery  cannot  be  had."**  The  judgment  in  such 
cases  is  usually  required  to  be  in  the  alternative.  Tn  Minnesota 
there  can  be  no  judgment  for  value  if  the  property  can  be  deliv- 
ered. A  judgment  for  value  not  in  the  alternative  is  not  neces- 
sarily erroneous  if  the  court  perceive  that  the  delivery  is  impos- 
sible.'* It  does  not  follow  from  an  omission  of  the  court  to  ascer- 
tain the  value  and  render  the  judgment  therefor  that  the  property 
had  no  value,  or  that  such  value  cannot  be  ascertained  in  suit 
upon  the  bond."'  Therefore,  where  judgment  for  value  or  in  the 
alternative  is  not  imperative  under  the  statute,  the  judgment 
may  be  for  a  return  of  the  goods  ;  in  such  case  tlie  value  may  be 
ascertained  and  recovered  in  suit  upon  the  bond,  if  the  return  is 
not  made." 


«»  Beemis  v.  Wylie,  19  V^is.  319. 

«8  Stat.  7  II.  VIII.  Ch.  4;  Wilk.  on  Rep.  72. 

"  Rockwell  V.  Saunders,  19  Barb.  473  ;  Seaman  v.  Luce,  28  Barb.  240  ; 
Merrill  v.  Butler,  18  Mich.  294  ;  Blackwell  v.  Acton,  38  Ind.  426  :  McNa- 
mara  v.  Eisenleff,  14  Abb.  Pr.  (N.  s.)  25  ;  Rowark  v.  Lee,  14  Ark.  426  :  Gar- 
rett V.  Wood,  3  Kan.  231. 

■">  Ward  V.  Masterson,  10  Kan.  77 ;  Marix  v.  Franke.  9  Kan.  132  ;  Clary 
V.  Roland,  24  Cal.  149  ;  and  cases  last  cited.  See,  also,  Fitzhugh  v.  Wiman, 
9  N.  Y.  5.59  ;  Glann  v.  Younglove,  27  Barb.  480  ;Callarati  v.  Orser,  4  Bosw. 
(N.  Y.)  94  ;  Smith  v.  CoolbauRh,  19  \\i».  107. 

■>!  Boley  V.  Griswold,  20  Wall.  480.     Cases  last  cited. 

''2  Kafer  v.  Harlow,  5  Allen,  348  ;  Hawley  v.  Warner,  12  Iowa,  42  ; 
Mason  v.  Richards,  12  Iowa,  73 ;  Nickerson  v.  Chatterton.  7  Cal.  568 ; 
Clary  v.  Rolland,  24  Cal.  147. 

'3  Hall  V.  Smith,  10  Iowa,  45. 


THE  VERDICT  AND  JUDGMENT.  C43 

§  773.  Judgment  in  the  alternative  for  the  goods  or  for 
their  value.  When  the  jiulf^nuMit  is  for  the  defendant,  and  lie 
is  entitled  to  a  return,  the  judgment  should  be  in  tlie  alternative, 
i.  e.,  for  the  delivery  of  the  property,  or  in  case  that  cannot  be 
had  then  the  value  of  the  property  as  found  by  the  jury  ; "'  upon 
such  judgment  he  is  entitled  to  all  the  processes  of  the  court 
which  are  issuable  upon  other  judgments. 

§  77-4.  Exceptions  to  this  rule.  There  are  cases  which  hold 
that  the  defendant  may  waive  the  return  and  Uike  judgment  for 
the  value  alone  if  he  so  elect.'^  This  rule,  however,  varies  in  dif- 
ferent States  ;  the  statute  controls,  and  upon  this  subject  it  is  the 
only  guide.  In  Illinois  the  judgment  is  for  the  return  and  not  in 
the  alternative,  excei)t  where  the  property  was  held  as  security 
for  the  payment  of  money  ;  in  such  case  the  judgment  may  be  in 
the  alternative  for  the  payment  of  the  amount  for  which  it  was 
riglitfully  held,  with  damages  within  a  given  time  to  be  fi.xed  by 
the  court,  or  make  return  of  the  property.'*  In  California  a  judg- 
ment which  left  the  defendant  at  liberty  to  pay  the  amount  or 
deliver  the  property,  as  he  might  elect,  was  held  erroneous;  it 
must  be  for  the  delivery  of  the  property,  if  delivery  can  be  had, 
or  for  the  value  in  case  it  cannot."  In  Wisconsin  the  defendant 
may  waive  a  return  and  take  judgment  for  the  value  of  the  prop- 
erty."* The  same  rule  prevails  in  Michigan"  and  in  Arkansas, 
where  an  acceptance  of  a  verdict  for  the  vabic  will  be  sutlicient 
without  a  formal  waive  of  a  retuin  on  record.""  In  New  York 
the  defendant  cannot  elect  to  take  judgment  for  the  value,  but  it 
must  be  in  the  alternative."'     In  Mississippi  the  value  of  each 

'«  Mason  v.  Richards,  12Iowa,  73  :  Eslava  v.  Dillilnml.  Hi  .\l:i.  TUJ  ;  Sniitli 
V.  Cfxjlbuiigli.  19  Wis.  107  ;  Jaiiseii  v.  ElTey,  10  Iowa,  ;?v'7  ;  .Marix  r.  I'raiiko, 
9  Kan.  132:  Chissorii  v.  Laiiicool.  9  Iiul.  531  ;  Hales  r.  Scott,  '20  IikI.  L'O'J  ; 
Ejiston  V.  \V(.rtliinn;ton,  5  S.  &  R.  133  ;  iJwi^'lit  v.  Kiios,  9  N.  Y.  (5  S.-ld.) 
470  ;  Hail  v.  Jf3iini'ss,  B  Kan.  3G."i  ;  (Jopuland  v.  Maj<jis,  9  Kan.  104  ;  Nick- 
ernon  v.  (.'hattertnii.  7  Cal.  .Ws  ;  Pratt  v.  Donovan.  10  Wis.  379. 

"»  Smith  V.  Coolhaiitch.  19  Wis.  107  ;  Peoplo  r.  Tripj),  15  Midi.  518  ;  Wil- 
liams u.  Vail.  9  Mich.  ICL'. 

'•  Rev.  Stat.  111.  (h.  119,  S;  22. 

"  Cumminf^H  v.  Stewart,  42  Cal.  232. 

"  Pratt  i».  Donovan,  10  Wis.  37H  ;  Morrison  v.  AiiHtin,  14  Wis.  0<»2  ;  Fann- 
ers' L.  &  T.  Co.  V.  Com.  liank  *»f  Ha<-ino.   15  .Wis,  425. 

'•  Adams  v.  Champion.  31  Micii.  235  ;  WlH-cIcr  r.  Wilkins.  19  Mich.  7n  ; 
PeopUi  V.  Tripi..  15  Mi-h.  51h 

•"  Hill  V.  FellowH.  25  Ark.  13. 

•'  Seaman  v.  Luce,  23  Harh.  240;  Tilzhue  v.  Winian.  5  Siild.  (N.  V.)  559. 


G46  THE  LAW  OF  REPLEVIN. 

separate  article  must  be  found  ;  judgment  should  be  for  the  do- 
livery  of  each,  or  the  payment  of  its  value;  upon  the  delivery  of 
any  one  or  more  of  the  articles  the  defendant  stands  discharged 
from  tke  payment  of  its  value."  This  is  also  the  rule  in  Texas.**' 
The  code  of  Alabama  recjuires  the  jury  to  assess  the  value  of  each 
separate  article  where  it  is  practicable.  Wlien  the  articles  were 
a  large  number  of  house  goods  of  small  value,  and  neitlier  the 
planititf  nor  defendant  objected  to  the  verdict  when  returned,  an 
assessment  of  the  value  in  gross  was  held  sufficient.'"  In  Tennes- 
see, with  reference  to  such  articles  as  are  in  their  nature  distinct, 
the  jury  must  find  the  value  of  each  separately."''  So  in  Missis- 
sippi, the  jury  must  assess  the  value  of  each  separate  article;  but 
what  in  common  understanding  is  considered  as  parts  of  one  whole 
may  be  so  in  law.  In  replevin  for  a  bai'ouche  and  harness  and 
two  horses,  the  barouche  and  harness  may  be  regarded  as  parts 
of  one  whole,  and  but  one  value  placed  upon  them ;  but  the  horses 
should  be  valued  separately.***  Where  the  defendant  gives  bond 
under  the  statute  and  retains  the  property  the  judgment  for  the 
plaintiff  should  be  in  the  alternative  for  the  property  or  its 
value." 

775.  Judgment  for  each  party  for  different  parts  of  the 
goods.  It  sometimes  happens  that  the  plaintiff  recovers  a  ver- 
dict for  a  portion  only  of  the  property,  while  the  defendant  has  a 
verdict  for  the  remainder.  In  such  cases,  each  is  entitled  to 
judgment  for  the  portion  so  found  for  him,  together  with  dam- 
ages and  costs  in  so  far  as  he  is  successful.  When  the  action 
was  for  merchandise,  and  the  jury  found  the  defendant  "  guilty  " 
as  to  all  the  proi)erty  mentioned,  except  two  pieces  of  satin,  and 
that  the  plaintiff  recover  all  the  goods  except  those,  and  that  he 
also  recover  one  cent  damages,  and  that  the  defendant  recover  the 
satin  and  four  dollars  and  twenty  cents  damages,  it  was  held  that 
the  judgment  must  follow  the  verdict,  and  that  the  costs  must  be 


«2  Whitfield  V.  Whitfield,  40  Miss.  369.  See,  also,  Caldwell  v.  Brugger- 
man.  4  Minn.  270  ;  Hoeser  v.  Kraeka.  29  Texas,  451  ;  Pickett  v.  Bridges» 
10  Humph.  (Tenn.)  ITf). 

"^  Hoeser  v.  Kraeka,  29  Texas,  451. 

^  Eslava  v.  Dillihunt,  46  Ala.  702. 

»*  Pickett  V.  Bridges.  10  Humph.  (Tenn.)  171  ;  Rowland  v.  Mann,  6  Ired. 
(N.  C.)  38  ;  Sayers  v.  Holmes,  2  Cold.  (Tenn.)  259. 

«*  Drane  v.  Hilzlieim,  13  S.  &  M.  (Miss.)  337. 

"  Anderson  v.  Tyson,  6  S.  &  M.  (Miss.)  244. 


THE  VERDICT  AND  JUDGMENT.  C47 

•apportioned  equitably.  In  such  case  the  court,  under  its  general 
powers,  could  set  ott'  the  dainaj^es  and  costs  and  award  execution 
for  the  balance,  when  no  reason  for  a  contrary  course  appeared  to 
exist.*** 

§  77G.  Separate  judgments  as  to  separate  defendants. 
Where  there  are  several  delendants,  a  verdict  as  to  oiie  need  not 
embrace  the  others.  One  may  be  guilty  i)f  the  takinj;  or  of  de- 
tention and  the  others  not.  The  rules  which  ai)i>ly  in  ca.ses  of 
trespass  govern  the  jutlgnient  in  replevin.  The  constant  pi-actice 
is  to  render  judgment  against  one  who  may  be  found  guilty  and 
at  the  same  time  discharge  those  not  guilty."'  So,  when  the 
action  is  against  joint  defendant.s  the  court  may  adjudge  a  return 
of  the  goods  to  one  of  several,  while  as  to  the  others  no  return  is 
allowed.*^  Where  there  is  more  than  one  defendant,  when  judg- 
ment is  against  all,  it  must  be  a  joint  judgment  for  joint  dam- 
ages ;  each  of  the  defendants  is  jointly  liable  for  all  the  damages 
which  the  plaintiff  has  sustained  without  regard  to  the  fact  that 
one  may  have  been  more  or  less  guilty  than  the  others."  But 
the  plaintiff  may,  before  verdict,  enter  nolle  jirosequi  as  to  one 
and  take  judgment  as  to  the  other.s,  and  when  the  jury  errone- 
ously assess  several  damages,  the  plaintitf  may  enter  a  nolle  as  to 
all  but  one  and  take  judgment  against  him.*' 

§777.  Order  for  delivery  part  of  the  judgment.  Tlieorder 
of  delivery  is  part  of  the  judgment."  It  must  be  made  at  the 
same  time,  or  at  least  while  the  court  has  its  record  before  it  ;  it 
cannot  be  made  at  a  subsequent  term,  even  u|)on   notice    to   the 

""  Poor  V.  Woodburii,  2."i  Vt.  2.{9.  See.  also.  Brown  v.  Sinilli.  1  N.  II. 
30;  Powell  r.  HinsdtiU',  5  .Ma.s.s.  343  :  Clark  v.  Keith.  9  Ohio,  73  ;  OK.ffe 
V.  Kt'llogj^.  15  111.  \\:,:\;  Mcl>iirren  V.  Thoinpsoii,  40  Me.  285;  Wright  v. 
MathewH.  2  hla<,-kf.  (In.l.)  isT. 

"  CarotherK  v.  Van  Hukhii.  2  (J.  fJreene,  (lowji.)  4S1  ;  ('lunch  v.  De- 
Wolf,  2  Root.  (Conn.)  2S2  ;  WaU.-tnan  v.  Limlwiy.  1»  L.  J.  g.  H.  10«  ;  A.l- 
dison  V.  OvertMid.  0  Tumi  H.  .'5.57  &  707  ;  Only  v.  Dickinson.  5  Cold.  (Tmn, ) 
4H0. 

**  Woodburn  v.  Chamherlin^  17  I5arb.   452. 

*'  Clark  V.  Hales,  15  Ark.  452;  Layumn  v.  Ilendrix,  1  Alu.  212  ;  .Snn|>- 
m>t\  V.  Perry,  9  (Jeo.  .50M  ;  Fulh-r  v.  Chaniherlain.  11  Met.  503. 

^Ouwford  r.  Morrin.  5  (Jralt.  90  ;  \Valla<«f  v.  Mrown,  5  Kcmt.  210  ;  IIol- 
ley  w.  Mix,  3  WtTid.  350;  Calioon  v.  H.mk  of  I'ti.a.  3  S.>ld.<N.  Y.)49<t; 
Pearcre  r.  Twi(!h«ll,  41  ,Mis.s.  340. 

*»  Wi'iZ4?n  t'.  MrKiiitn-y.  2  Wis.  2hH  ;  Nii-kfrson  v.  <  ■|ifitl«'rt<>n.  7  dil.  572  ; 
Kiit<-»  V.  ThoniuM,  14  Minn.  401  ;  Dwi^ht  i'.  EnoH,  5  S««ld.  (N.  V.)  470;  Wil- 


C48  THE  LAW  OF  REPLEVIN. 

other  party.  The  court  has  no  power  to  correct  its  records  at  a 
subsetiueiit  tenn."* 

§  778.  Defendant  entitled  to  reasonable  time  to  comply 
with  the  judgment  for  return.  When  the  judgment  is  for  a 
retin-n  or  jiaynient  of  the  value,  tlie  defendant  is  entitled  to  a 
reasonable  tune  within  which  to  make  the  return,  and  so  excuse 
himself  from  the  payment  of  the  value.  Thus,  v/here  the  judg- 
ment was  for  a  return  of  the  mare  and  colt  in  dispute,  or  in  lieu 
thereof  one  hundred  and  sixty  dollars,  a  few  days  thereafter  the 
plaintiff  tendered  the  mare  and  colt  to  the  defendant,  who  refused 
to  receive  them  and  demanded  the  money  value  as  assessed  by 
the  jury,  a  tender  within  thhty  days  was  held  to  be  within  a 
reasonable  time.'* 

§  779.  Effect  of  payment  of  judgment  for  value.  Where 
the  judgment  is  against  tlie  defendant  for  value,  and  that  value 
is  paid,  the  efifect  of  the  judgment  and  payment  is  to  transfer  the 
title  to  the  party  against  whom  the  judgment  is  rendered.'®  So 
in  trover  judgment  for  plaintiff  changes  the  ownership,  so  that 
as  against  the  defendant  this  plaintiff  cannot  again  claim  title.'^ 
But  in  replevin  the  right  to  possession  may  be  the  only  issue  to 
be  tried,  and  in  such  case  the  judgment  is  no  evidence  of  title. 
When  the  title  is  in  issue  and  determined,  the  judgment  will,  of 
course,  be  conclusive  upon  the  parties  until  reversed  in  a  legal 
manner,''  and  this  rule  applies  as  well  Avhere  the  property  is  not 
delivered  upon  the  writ  as  where  it  is." 

§  780.  The  same.  When  plaintiff  sued  for  rails,  and  the 
defendant  had  used  part  of  them  in  building  a  fence  before  the 
service  of  the  writ,  judgment  for  damages  in  replevin  was  a  bar 
to  subsequent  suit  in  trover  for  the  value.'""     The  record  of  an 

kins  V.  Treynor.  14  Iowa,  393  ;  Clark  v.  Warner,  32  Iowa,  219  ;  Funk  v. 
Israel,  5  Iowa,  454  ;  Fitzliugh  v.  Wiman,  9  N.  Y.  559. 

«  Lili  V.  Stooke}'.  72  III.  495. 

«  McClellan  v.  Marshall,  19  Iowa.  562. 

9«  Marix  v.  Franke.  9  Kan.  132. 

"  Adams  v.  Brouf^hton.  Andrews.  18.     SeeHoagr.  Breman,  3  Mioh.  1f)2- 

9s  Seldner  v.  Smith,  40  Md.  603  ;  Wallace  v.  Clark,  7  Blackf.  299  ;  Warner 
V.  Matthews,  18  111.  83.     See  Judgment  for  Return,  ante,  Ch.  XVI. 

99  Parmalee  r.  Loomis,  24  Mich.  242. 

•w  Bower  v.  Tallman,  5  W.  &  S.  (Pa.)  556.  See,  also.  Csterhout  v. 
Roberts.  8  Cow.  (N.  Y.)  43  :  Livingston  r.  Bishop.  1  Johns.  290  ;  Sharp  v. 
Gray,  5  B.  Mon.  (Ky.)  4  ;  Janes  v.  McNeil,  2  Bailey,  (S.  C.)  466. 


THE  VERDICT  AND  JUDGMENT.  649 

ineffectual  suit  in  replevin  for  money  is  not  a  bar  to  another 
action  for  the  same  money."" 

§  781.  Judgment  of  non-suit  does  not  affect  title.  Judj^- 
ment  of  non-suit  or  discontinuance  does  not  bar  the  plaintiff 
from  another  action  for  the  same  cause.""  This  was  the  com- 
mon law.  The  sUitute  in  England,  Sbit.  Westm.  2il,  13  E.  1,  ^ 
C.  2,  which  restrains  the  phiintiff  from  a  second  replevin,  but 
permits  him  to  proceed  by  a  writ  of  second  deliverance,  is  ap- 
plicable only  to  actions  founded  upon  a  distress,  and  is  loeal  to 
that  kingdom.'" 

§  782.  Judgment  of  dismissal.  When  the  suit  is  dismi.s.sed 
for  informality  the  plaintitf  may  maintain  another  aetion  upon 
the  original  unlawful  fcikiiig.  Such  judgment  for  return  con- 
stitutes no  bar  to  this  action  because  the  case  was  not  heard 
upon  its  merits.  Nor  is  it  a  valid  objection  that  the  defendant 
has  not  in  fact  taken  out  any  writ  of  return  or  actually  taken 
the  property  into  his  possession.  The  judgment  for  a  return 
was  ordered  upon  the  defendant's  motion  to  dismiss  the  writ ; 
the  plaintiff  yielded  to  it  and  returned  the  property  to  the  place 
from  which  he  had  taken  it  under  his  defective  proceeding;  this 
left  the  plaintiff's  case  where  it  was  when  he  instituted  his  lirst 
action.'"* 

§  783.  Illustrations  of  the  effect  of  judgment.  When  tlu; 
plaintiff  in  rcidevlu  who  had  obtained  delivery  of  the  goods  upon 
his  writ  sold  them  and  afterwards  died  and  the  suit  was  abated, 
the  defendant  in  the  suit  brought  replevin  from  the  pureha.ser 
and  was  permitted  to  set  up  his  prior  title  to  sustain  Ids  action 
against  the  purchaser;  the  record  of  the  first  suit,  which  was 
abated,  constituting  no  bar.'"'  So  judgment  by  default  does  not 
always  settle  the  rights  to  the  proi>erty  ;  there  should  be  a  find- 
ing by  the  court.""'  But  parties  sued  in  trespass  cannot  set  up 
the  fact  that  they  .sold  the  proi)erty  to  one  from  whom  the  owner 


'<•'  SaRer  r.  Rl.iiii.  r,  Haii<l.  (41  N.  Y.)  448. 

'*»  Ilaokett  r.  Bunnell,   10  Wis.  471  ;  l^uggot  r.   Kobiii.s.   'J    lU.u-kl     1 1 '. 
Wwjtcott  V.  Rock.  2  Col.  :{;{."i. 

'"»  I>aKp«*tt  r.  Uol.iiiH.  '.:  Hlarkf.  41H. 

'«  \Vall)ri<lK<3  V.  Shaw.  7    (^iisli.    MO;    \Vill)ur    r.   (hlmun',  JI    I'lck.  250 ; 
MorUiH  V.  Swi'<-tH4!r,  12  Alh-ii  (.Miihh.)  1:M. 

">»  I»<;kwf>od  I'.  I'erry,  U  M.«t.  440. 

"*  Htuiidert  r.  IIasM.,-11.  0  lliiinpli.  nViiri.)  1:57. 


650  THE  LAW  OF  REPLEVIN. 

has  recovered  it  in  replevin.  The  recovery  in  replevin  from  a 
purchaser  from  a  trespasser  is  no  defense  for  the  trespasser."" 

§  784.  Judgment  for  value  of  limited  interest.  When  the 
interest  of  tlic  defendant  is  less  than  the  vahie  of  the  property  a 
judgment  in  his  favor  should  not  be  for  full  amount,  but  only  for 
the  value  of  his  interest,  unless  he  is  in  some  way  liable  to  the 
general  owner.  When  the  suit  is  for  mortgaged  property,  de- 
fendant succeeding  is  entitled  to  a  return ;  but  in  such  cases  he 
only  takes  the  lien  of  his  mortgage  ;  if  he  ask  for  judgment  for 
the  full  amount  he  must  take  the  value  of  his  interest.'"* 

§  785.  Judgment  for  value  on  count  in  trover.  In  Illinois, 
where  the  officer's  return  shows  that  the  property  or  any  part  of 
it  was  not  delivered,  the  plaintiff  may  add  a  count  in  trover,  and 
upon  proper  proof  take  judgment  for  the  value  of  the  property 
not  delivered.'"'  The  rule  in  Tennessee  and  Florida  is  similar  to 
that  of  Illinois  in  this  respect,  and  was  so  in  Colorado  until 
changed  by  statute. 

§  1x('k  When  property  is  lost  judgment  for  return  imma- 
terial. Where  it  api)ears  upon  trial  that  the  property  is  hope- 
lessly lost  or  destroyed  so  that  a  judgment  for  a  return  would  be 
of  no  avail,  a  failure  to  render  a  judgment  for  its  return  would 
be  at  most  a  technical  error,  for  which  judgment  for  the  value 
would  not  be  reversed."" 

§  787.  Judgment  for  value  in  such  cases.  The  death  or 
destruction  of  the  property  does  not  necessarily  do  away  with 
the  necessity  of  judgment  for  the  value.  By  the  ancient  law  the 
property  was  presumed  to  belong  to  the  plaintiff,  and  the  only 
interest  which  the  defendant  claimed  in  it  was  the  right  to  hold 
it  as  security  or  a  pledge  for  the  rent  claimed  to  be  due.  Prop- 
erty so  seized  or  impounded  was,  even  while  in  pound,  at  the 
owner's  risk  if  it  died.'"  If  replevied  by  the  owner  the  landlord 
lost  his  lien  and  was  required  to  look  to  the  security  upon  the 
bond  ;  if  the  animal  died  pending  the  replevin  suit  the  rights  of 
the  landlord  were  not  affected.  But  under  the  present  practice 
the  controversy  is  more  frequently  concerning  the  title  or  right 

'«^  McGee  v.  Overly,  7  Eng.  (Ark.)  164. 

'»8  Fowler  v.  Hoffman,  31  Mich.  221 ;  Russell  v.  Butterfield,  21  Wend. 
300. 

'"»  Kehoe  v.  Rounds.  69  111.  352  ;  Dart  r.  Horn,  20  111.  213. 

Ji"  Brown  v.  Johnson,  45  Cal.  77  ;  Boley  v.  Griswold,  20  Wall.  486. 

'"  See  ante,  §  8  ;  Gilbert  on  Rep.  ;  3  Bla.  Com.  145. 


THE  VERDICT  AND  JUDGMENT.  651 

of  possession  than  of  distraint.  The  common  law,  tlierefoie, 
furnishes  no  rules  to  determine  what  the  judgment  should  be  in 
such  cases.  In  New  York  it  was  held  that  when  the  pn)i)erty 
was  an  animal  that  died  before  a  return,  plea  showing  that  fact, 
and  that  it  died  without  the  fault  of  the  defendant,  was  good."* 
But  where  the  property  is  wrongfully  taken  out  of  the  owner's 
possession  upon  a  writ  of  replevin  the  taker  cannot,  upon  judg- 
ment against  him,  excuse  his  liability  for  the  payment  of  the 
value  by  showing  its  death  or  destruction.  Property  so  taken  is 
not  at  the  risk  of  the  rightful  owner  while  in  possession  of  the 
wrongful  taker.  This  question,  however,  more  properly  arises  in 
another  place.'" 

"*  Carpenter  i".  Stevens,  12  Wend.  589. 
"3  See  Damages,  §  600,  et  seq. 

Note  XXXIV.  Judgment  in  Qeneral. — No  judgment  can  be  entered 
except  that  which  the  statute  allows,  Bateman  v.  Blake.  81  Mich.  227, 
45  N.  W.  831;  Johnson  v.  Mason,  64  N.  J.  L.  258,  45  Atl.  618.  The  rights 
of  the  parties  must  be  determined  with  reference  to  the  time  of  the  in- 
stitution of  the  suit.  Brown  v.  Hogan,  49  Neb.  746.  69  N.  W.  100.  The 
judgment  must  determine  the  right  of  possession  as  to  all  the  goods 
demanded  and  the  right  to  which  is  denied,  Olson  v.  Peabody.  121 
Wis.  675.  99  N.  W.  458;  whether  replevied  or  not.  Carrier  v.  Carrier,  71 
Wis.  111.  36  N.  W.  626.  May  be  given  for  nominal  damages  without 
the  formality  of  an  assessment  McKean  v.  Cutler.  48  N.  H.  370;  see  the 
opinion  of  Doe.  J.,  in  this  case  in  denunciation  of  mere  formalities  and 
opprobrious  niceties;  "there  is  not  any  word  or  form  of  expression 
that  is  indispensable  in  a  judgment."  And  the  value  may  be  determined 
from  the  plaintiff's  affidavit  without  calling  a  jury.  Lamy  v.  Reniuson, 
2  N.  M.  245.  Judgment  for  the  plaintiff  not  mentioning  damages  or 
costs  implies  that  plaintiff  is  entitled  to  nominal  damages  ami  costs, 
and  an  execution  for  costs  will  not  be  set  aside,  though  the  clerk  omit 
to  insert  in  it  a  direction  to  collect  one  cent  damages,  as  he  mlglit 
properly  do.  Starkey  v.  Walte,  69  Vt.  193,  37  Atl.  292.  A  judgment 
authorizing  execution  against  the  defendant  unless  the  goods  are  forth- 
with delivered.  Is  bad  In  form.  Seattle  Hank  v.  Meerwaldt.  S  Wash.  630, 
36  I'ac.  763.  A  Judgmt-nt  against  Hire*-  defcndantB,  upon  stipulation, 
signed  by  the  attorney  of  one  only,  as  di-fendanfs  attorney,  two  defend- 
anta  not  appearing,  and  the  roniplalnt  showing  no  cauHe  of  atl  Ion 
agalnHt  them,  must  be  vacated  on  motion.  Stalil  i*.  Cliicugo  Co..  m  WIh. 
315,  68  N.  W.  954.  A  judgment  that  the  plaintiff  mover  a  Hum  nanird. 
the  value  of  the  properly  In  controverHy.  "  to  be  dlBcharged  on  payimiit 
of  another  Bum,"  the  amount  of  certain  clalniH  aHHcrifd  ugulnt<t  tt>o 
defendant,  la  erroneouH;  the  judgment  muHt  be  according  lo  the  Htututo, 


652  THE  LAW  OF  REPLEVIN. 

for  the  possession  of  the  goods  or  the  value,  Spencer  v.  Bell,  109  N.  C. 

39,  13  S.  E  704.  Plaintiff  had  pledged  certain  horses  to  defendant  and 
brought  replevin,  claiming  that  the  debt  was  paid;  he  failed  in  his  ac- 
tion, and  judgment  was  given  that  the  goods  be  returned  to  defendant 
"  to  be  holden  by  him  as  security  for  $189.10,  or  at  defendant's  election 
he  recover  of  plaintiff  and  the  sureties,  said  sum,"  Kronok  v.  Reid,  105 
Mo.  Ap.  430,  79  S.  W.  1001.  All  the  equities  of  the  parties  may  be  ad- 
justed in  replevin,  Maryville  Bank  v.  Snyder,  85  Mo.  Ap.  83.  De- 
fendant was  in  possession  of  certain  horses  as  constable,  claiming 
under  an  execution  issued  upon  a  judgment  enforcing  an  agister's  lien; 
plaintiff  claimed  under  a  chattel  mortgage  junior  to  the  lien,  and  in- 
sisted that  the  proceedings  enforcing  the  lien  were  void;  but,  it  ap- 
pearing that  the  lien  was  unquestionably  valid,  the  animals  were 
awarded  to  the  defendant,  Id.  And  although  plaintiff's  action  is  pre- 
maturely brought,  and  the  goods  have  been  sold  pending  the  suit,  by  the 
sheriff,  yet  if  plaintiff  has  an  interest,  the  value  of  that  interest  may 
be  ascertained  in  the  replevin  and  judgment  given  in  his  favor  ac- 
cordingly, Harward  v.  Davenport,  105  la.  592,  75  N.  W.  487.  Judgment 
in  favor  of  all  of  several  defendants,  some  not  having  any  interest,  is 
error,  Steele  v.  Mattescn,  50  Mich.  313,  15  N.  W.  488;  Jandt  v.  Potthast, 
102  la.  223,  71  N.  W.  216;  Hall  v.  Jenness,  6  Kans.  35G.  A  judgment 
that  the  plaintiif  "  retain  the  property  replevied,"  and  recover  the 
value,  is  not  injurious,  where  the  record  shows  nothing  was  taken  on 
the  writ,  Greenberg  v.  Stevens,  212  His.  606,  72  N.  E.  722.  The  judg- 
ment must  follow  the  verdict,  Holliday  v.  McKinne,  22  Fla.  153,  Gordon 
V.  Little,  41  Neb.  250,  59  N.  W.  783;  McGriff  v.  Reid,  37  Fla.  51,  19  So. 
339.  But  the  court  is  not  required  to  enter  a  judgment  for  damages 
merely  because  damages  are  awarded  by  the  verdict;  where  there  are 
distinct  findings  of  both  damages  and  interest  upon  the  value,  the  court 
may  omit  either  in  the  judgment,  Johnson  v.  Fraser,  2  Idaho,  404,  18 
Pac.  48.  But  in  Everett  v.  Akins,  8  Okla.  184,  56  Pac.  1062,  where 
the  verdict  declared  that  defendant  "  is  entitled  to  the  four  hundred 
bushels  of  wheat  *  *  *  at  seventy-five  cents  per  bushel,  minus 
$70  paid  by  plaintiff  for  harvesting,  threshing  and  seed,  total  amount 
for  defendant  $230,"  it  was  held  the  court  had  no  power  to  vacate  the 
allowance  made  by  the  jury  to  the  plaintiff  for  harvesting,  threshing 
and  seed.  If  the  court  give  judgment  that  plaintiff  is  the  owner,  upon 
the  mere  finding  that  he  is  entitled  to  possession,  it  is  error,  Yick  Kee 
V.  Dunbar,  20  Ore.  416,  26  Pac.  275.  The  judgment  mqst  conform  to 
the  pleadings.  Eikenbary  v.  Clifford,  34  Neb.  607,  52  N.  W.  377.  But  the 
parties  may  voluntarily  litigate  a  controversy  not  made  in  the  plead- 
ings, and  the  successful  party  may  have  such  relief  as  is  equitable; 
the  defendant  failed  to  replevy  the  goods;  on  the  trial  plaintiff's  title 
was  admitted  by  the  defendant,  and  defendant's  right  to  detain  the 
goods  as  security  for  $50  was  admitted  by  the  plaintiff.  Held,  that 
plaintiff  should  be  awarded  the  goods  on  payment  of  fifty  dollars,  or, 
if  possession  could  not  be  had,  the  value  less  fifty  dollars,  Bassett  v. 
Haren,  61  Minn.  346,  63  N.  W.  713.    Where  plaintiff  fails  the  judgment 


THE  VERDICT  AND  JUDGMENT.  653 

may  direct  the  delivery  of  the  goods  to  an  intervener  who  appears  to 
be  entitled,  Grubbs  v.  Stephenson.  117  N.  C.  G6.  23  S.  E.  97.  The  judg- 
ment must  describe  the  goods,  Tumulte  v.  Jordan,  67  N.  J.  L.  509,  51 
Atl.  466;  either  by  express  words,  or  by  reference  to  the  pleadings  or 
other  part  of  the  record,  Cooke  v.  Aguirre,  86  Calif.  479.  25  Pac.  5.  Seat- 
tle Bank  r.  Meerwaldt,  8  Wash.  630,  36  Pac.  7tl3;  must  describe  the 
goods  with  reasonable  certainty,  Guille  r.  Wong  Fook.  13  Ore.  577.  11 
Pac.  277.  The  judgment  may  refer  to  the  complaint  for  the  description. 
Kelly  V.  :McKibben,  54  Calif.  192;  Foredice  r.  Rinehart.  11  Ore.  208,  8 
Pac.  285.  In  some  States  it  is  held  that  the  judgment  must  show  the 
separate' value  of  each  article,  Savage  v.  Russell,  84  Ala.  103.  4  So.  235; 
Herder  v.  Schwab  Co.,  Tex.  Civ.  Ap..  37  S.  W.  784;  Bowman  v.  Weber. 
Tex.  Civ.  Ap.  41  S.  W.  493;  but  see  Note  XXXIII.  p.  640.  The  judgment 
must  determine  the  rights  of  the  parties  as  to  all  of  the  goods.  A  judg- 
ment in  favor  of  the  plaintiff  for  a  portion  only,  and  silent  as  to  the 
residue,  will  be  modified  on  appeal  so  as  to  direct  a  return  of  these  latter 
articles  to  the  defendant,  Ryan  i'.  Fitzgerald,  87  Calif.  345,  25  Pac.  546. 

Judgment  for  the  Goods,  for  Plaintiff.— In  Tennessee,  the  plaintiff 
prevailing,  is  entitled  to  judgment  for  possession,  with  damages  for 
the  taking  and  detention,  Parham  v.  Riley,  4  Cold.  5.  In  Texas  he  re- 
covers the  goods,  and  in  the  alternative  the  value  at  the  time  of  the 
verdict;  and  if  live-stock  be  in  question,  the  increase.  Morris  v.  Coburn. 
71  Tex.  406,  9  S.  W.  345.  A  judgment  for  the  plaintiff  should  award 
him  the  property  with  damages  for  the  detention,  or  in  case  delivery 
cannot  be  had,  the  value,  Hammond  v.  Morgan,  101  N.  Y.  179.  4  N.  E. 
328.  Plaintiff  claiming  under  a  mortgage  upon  a  stock  of  goods  is 
entitled  to  judgment  for  possession  of  the  whole,  though  the  debt  se- 
cured by  the  mortgage  is  less  than  the  value  of  the  goods.  Swope  v.  Burn- 
ham.  6  Okla.  736.  52  Pac.  924;  but  the  plaintiff  to  entitle  himself  to  a 
judgment  for  possession  must  show  an  existing  and  immediate  right 
of  possession.  Nichols  •;.  Knutson.  62  Minn.  237,  64  N.  W.  391.  Where 
plaintiff  has  obtained  possession  under  the  writ  there  can  be  no  judg- 
ment for  delivery,  Leonard  v.  McGinnis,  34  Minn.  506,  26  N.  W.  733; 
the  judgment  in  such  case  should  award  plaintiff  the  possession,  with 
his  damages  and  costs,  Webb  v.  Hecox.  27  Misc.  169,  58  N.  Y.  Sup.  3S2; 
Han^rom  v.  Burmood.  35  Neb.  504.  53  N.  W.  371.  Plaintiffs  right  to  a 
judgment  for  the  goods,  or  the  value  with  damages,  Is  not  affected  by 
his  failure  to  take  out  an  order  of  delivery,  Eaton  v.  Langley,  65  Ark. 
44S,  47  S.  W.  123;  and  if  plaintiff  kHows  title  and  right  of  poHHeHslon 
to  any  part  of  the  goods,  he  Is  fntltled  to  judgment  as  to  bo  nimh, 
AltemuH  V.  Holiomb.  20  Ky.  L.  Rep.  96,  45  S.  W.  360.  Where  drf.'ud- 
antH,  In  open  court,  relinciulsh  all  claim  to  the  goods,  judgment  Hhould 
KO  In  favor  of  plaintlfT  for  poHBcBslon  and  costw,  FrIck  Co.  t'.  Sttpln'n«,  7 
KanK.  Ap.  745,  53  Par.  378.  And  the  fact  that  no  danmgoH  are  BHHOKBed 
to  the  plaintiff  Ik  Immaterial,  McKean  v.  Cutler.  18  N.  H.  370.  Where 
defendant  HurrenflerH  u  part  of  the  goodn  plaintiff  Ih  entitled  to  JiidR- 
ment  for  the  poHBeHKlon  of  theHe,  and  to  at  lejiHt  nominal  dariuigeH, 
Cardwell    v.   Ollmore.  86    InJ.    428.      Plaintiff  and   ilefendant   Heverally 


G54  THE  LAW  OF  REPLEVIN. 

claim  under  mortgages  from  the  same  mortgageor;  plaintiff  is  adjudged 
the  senior,  and  defendant  guilty  of  dentention;  plaintiff  having  ob- 
tained the  goods  under  the  writ  is  entitled  to  a  judgment  for  possession 
and  for  costs;  it  is  error  to  adjudge  the  defendant  the  amount  of  his 
mortgage,  even  though  the  value  of  the  goods  be  found  to  exceed  both 
mortgages,  Olin  v.  Lockwood,  102  Mich.  443,  GO  N.  W.  972.  In  New 
Jersey,  where  defendant  gives  bond  and  retains  the  goods,  there  can 
be  no  judgment  for  possession,  but  only  for  the  value,  and  damages  for 
the  detention.  Fort  Wayne  Corporation  v.  The  Security  Co.,  65  N.  J.  L. 
221,  47  Atl.  559.  The  plaintiff  may  have  judgment  for  the  goods,  though 
there  be  no  finding  of  value.  Hay  v.  Muller,  7  Misc.  670,  28  K.  Y.  Sup. 
57.  Where  defendant  has  confused  the  lumber  of  plaintiff  with  other 
like  lumber,  so  that  the  particular  lumber  belonging  to  the  plaintiff  can- 
not be  conveniently  distinguished,  plaintiff  may  recover  the  quantity 
to  which  he  is  entitled,  supplied  if  necessary  by  other  lumber,  with 
which  it  has  been  so  confused,  Starke  v.  Paine,  85  Wis.  633,  55  N.  W. 
185. 

For  Return  to  Defendant. — If  plaintiff  fails  the  general  rule  is  to 
award  a  return,  Stanley  v.  Neale,  98  Mass.  343;  as  where  the  plaintiff 
fails  because  the  action  is  brought  in  the  name  of  the  trustees  of  a 
corporation  and  not  in  the  corporate  name,  Bartlett  v.  Brickett,  98  Mass. 
521,  Glenn  v.  Porter,  68  Ark.  320,  57  S.  W.  1109;  or  because  plaintiff 
was  partner  and  tenant  in  common  with  defendant  at  the  institution 
of  the  suit,  Jenkins  v.  Mitchell,  40  Neb.  664,  59  N.  W.  90;  Fugina  v. 
Brownlie,  65  Wis.  628,  27  N.  W.  408;  Ingals  v.  Ferguson,  138  Mo.  358, 
39  S.  W.  801;  or  the  defendant  prevails  on  a  demurrer  to  a  plea  in 
abatement,  Walko  v.  Walko,  64  Conn.  74,  29  Atl.  243;  or  the  cause  is 
discontinued  by  operation  of  law,  Daley  v.  Mead,  40  Minn.  382,  42  N.  W. 
85;  or  by  the  plaintiff  voluntarily,  Schweer  v.  Schwabacher,  17  111.  Ap. 
78;  Manix  v.  Howard,  82  N.  C.  125;  Liebman  v.  McGraw,  3  Wash.  520,  28 
Pac.  1107,  rejecting  the  authority  of  Capitol  Company  v.  Hall,  10  Ore. 
204;  Kneebone  v.  Kneebone,  83  Calif.  645,  23  Pac.  1031;  or  where  judg- 
ment of  non-suit  is  given  for  defects  in  the  plaintiff's  allegations,  Kim- 
ball Co.  V.  Redfield,  33  Ore.  292,  54  Pac.  216;  or  the  action  is  com- 
menced without  the  affidavit  required  by  statute,  Barruel  v.  Irwin,  2 
N.  M.  223;  or  the  plaintiff  fails  on  the  trial  to  make  out  his  case,  Pabst 
Co.  V.  Butchart,  68  Minn.  303,  71  N.  W.  273;  Washington  Co.  v.  Webster, 
68  Me.  449;  Lochnitt  v.  Stockton,  31  Ills.  Ap.  217;  or  it  appears  that 
the  defendant,  at  the  issuing  of  the  writ,  was  the  marshal  of  the 
United  States  and  holding  the  goods  under  process  from  the  court  of 
the  United  States;  and  in  such  case  there  should  be  no  alternative, 
Williams  v.  Chapman,  60  la.  57,  14  N.  W.  89;  or  the  sheriff  has  seized 
goods  not  described  in  the  writ,  Dewey  v.  Hastings,  79  Mich.  263,  44 
N.  W.  607;  or  the  defendant  prevails  upon  one  of  several  pleas,  Mac- 
Lachlan  v.  Pease,  66  Ills.  Ap.  634.  The  defendant  may  have  judgment, 
though  the  writ  has  never  been  returned,  upon  proof  made  that  the 
goods  were  delivered  to  the  plaintiff,  Frank  v.  Brown,  119  Mich.  631,  78 
N.  W.   670.     Defendant  is  entitled  to  judgment  for  the  return  of  all 


THE  VERDICT  AND  JUDGMENT.  655 

the  property,  and  if  the  property,  all  of  it.  cannot  be  returned,  then 
for  the  value  of  all  of  it.  Whetraore  r.  Rupe.  (it>  Calif.  237.  3  Pac.  S51. 
Where  pending  replevin  for  live-stotk.  some  of  the  animals  die.  de- 
fendant prevailing,  is  entitled  to  judgment  for  the  value  of  all,  both 
the  quick  and  the  dead,  Lillie  v.  McMillan,  52  la.  463,  3  N.  W.  601. 
Return  will  not  be  awarded,  if,  at  the  institution  of  the  suit,  the  defend- 
ant was  not  in  possession,  Hursh  v.  Starr.  6  Kans.  Ap.  8,  49  Pac.  618; 
House  V.  Turner.  106  Mich.  240,  64  N.  W.  20;  Blatchford  r.  Boyden.  122 
Ills.  657.  13  N.  E.  801;  or  assets  no  claim.  DePriest  v.  McKinstry.  38 
Neb.  194.  56  N.  W.  SOb.  It  is  the  policy  of  the  law  to  settle  the  right 
of  possession  and  all  questions  which  may  arise  therefrom,  in  one  ac- 
tion. Id.  Return  will  not  be  awarded  for  the  mere  failure  of  the  plain- 
tiff to  tender  in  advance  of  the  trial,  promissory  notes  given  for  the 
goods  which  were  obtained  by  a  fraudulent  misrepresentation,  Doane 
V.  Lockwood,  115  Ills  490,  4  N.  E.  500 — depends  upon  statute — ;  or  the 
plaintiff  fails  merely  for  the  omission  to  prove  the  demand  in  advance 
of  suing  out  the  writ,  Webster  i'.  Brunswick  Co.,-  37  Fla.  433,  20  So. 
536.  McGregor  r.  Cole,  100  Mich.  262,  58  N.  W.  1008;  nor  where  the 
defendant  disclaims  all  right  in  the  goods,  Hinchman  v.  Doak,  48  Mich. 
168,  12  N.  W.  39;  Farrch  v.  BursL-y,  100  Mich.  547.  59  N.  W.  245;  nor 
where  defendant's  right  to  the  goods  expires  pending  the  action,  Legere 
V.  Stewart,  17  Colo.  Ap.  472,  68  Pac.  1059;  nor  even  upon  verdict  for 
th>  defendant  unless  the  verdict  finds  that  the  defendant  is  then- 
entitled  to  return.  Id.;  nor  if  the  defendant  denies  the  detention  and 
asserts  no  claim  to  the  goods,  Hursh  v  Starr,  sui)ra;  nor  v/here  the 
plaintiff  is  entitled  to  possession  at  the  trial,  though  not  so  entitled  at 
the  institution  of  his  suit.  Barney  v.  Brannan,  51  Conn.  175;  Flinn  v. 
Ferry.  127  Calif.  648,  60  Pac.  434.  Ator  v.  Rix.  21  Ills.  Ap.  309;  but 
otherwise  if  the  plaintiff's  only  claim  is  a  lien  acquired  after  a  wrong- 
ful taking,  as  for  rent  accrued,  the  landlord  having  distrained  before 
any  rent  was  due.  Id.;  nor  where  the  defendant  is  mortgageor  in  default 
and  has  no  right  to  the  possession  of  the  goods,  even  though  they  were 
taken  from  him  by  unlawful  force,  Nichols  v.  Knutson,  62  Minn.  237,  64 
N.  W.  391;  nor  where  the  defendant  is  an  officer  who  has  unlawfully 
levied  upon  extrmpt  goods,  even  though  the  law  prohibits  an  action  of 
replevin  against  an  officer  In  such  case,  Saffell  r.  Wash.,  4  B.  Monr. 
92;  nor  even  where  the  defendant  Is  found  not  guilty  unless  his  right 
appears  superior  to  that  of  the  plaintiff.  Smith  Co.  v.  Ilolden,  73  Vt. 
396,  51  Atl.  2;  nor  when  the  plaintiff  entirely  fails.  If  defendant  give 
no  evidence  of  right  In  himself.  Capitol  Company  v.  Hall.  10  Ore.  202; 
nor  where  the  defendant  pleads  merely  n(jn  dvtnttt,  Dyer  r.  Brown, 
71  Ills.  Ap.  317;  nor  upon  verdict  of  not  guilty  ui)<)n  Huch  plea,  or  tlie 
plea  of  non  rrpit.  or  both,  Mattson  r.  HanJHch.  5  IHh.  Af).  102,  Hackett  r. 
Jones,  34  HIh.  Ap.  562.  Ancl  where  the  action  Is  dlHinlHsetl,  ntlicr  <le- 
fendantB  are  not  entitled  to  judgment  that  the  gooilH  Hhall  be  returned 
to  the  HherlfT.  from  whom  they  were  taken,  Oppenhelnier  i'.  Ix'wIh,  20 
Ap.  Dlv.  332,  40  N.  Y.  Sup.  7C5;  nor  1h  deft-ndant  entitled  to  return 
where   he   pleads   nrm  cepit  merely,   though    tlio   plaintiff   la   nonBult. 


656  THE  LAW  OF  REPLEVIN. 

Hoeffner  v.  Stratton,  57  Me.  360.  Defendant  who  disclaims  by  his 
answer,  cannot  demand  that  the  goods  be  restored  to  his  co-defendant 
who  makes- default.  Sheehan  v.  Golden.  85  Hun.  462.  33  N.  Y.  Sup.  109. 
Defendants  sued  jointly,  and  answering  separately,  may  have  a  joint 
judgment  for  the  return  of  the  goods,  or  in  the  alternative  for  their 
value,  although  they  hold  by  distinct  titles,  Myers  v.  Moulton,  71  Calif. 
499,  12  Pac.  505.  There  can  be  no  judgment  of  return  where  the  de- 
fendant has  given  bond  and  retained  the  goods,  Allen  v.  Steiger,  17 
Colo.  552,  31  Pac.  226.  Nor  where  the  goods  immediately  upon  the 
service  of  plaintiff's  writ,  were  loplevied  by  other  parties  acting  in  con- 
cert with  the  defendant,  Joseph  v.  Braudy,  112  Mich.  579,  70  N.  W.  1101; 
nor  where  by  any  means  the  defendant  has  already  obtained  the  goods, 
Goodheart  v.  Bowen,  2  Ills.  Ap.  578.  The  statutory  provision  that 
"  judgment  may  be  for  a  return  thereof  or  for  value,  etc.,"  gives  the 
court  a  discretion  to  omit  an  order  for  the  return  when  substantial 
justice  requires  this,  Johnson  v.  Fraser,  2  Idaho,  404,  18  Pac.  48.  Judg- 
ment for  the  plaintiff  as  to  part  of  the  articles  sued  for,  pursuant  to 
an  offer  of  compromise  made  by  the  defendant,  entitles  defendant  to  the 
residue.  Shepherd  v.  Moodhe,  150  N.  Y.  183,  44  N.  E.  9C3.  Where  the 
plaintiff  demanding  goods  which  have  been  taken  under  execution 
against  a  stranger,  joins  the  creditors  with  the  sheriff  in  his  action 
of  replevin,  he  cannot  complain  of  a  judgment  for  return  to  all  of  the 
defendants,  Brunk  v.  Champ,  88  Ind.  188.  The  power  of  the  court  to 
refuse  a  return  where  defendant's  right  is  expired,  is  not  dependent 
upon  the  allegations  of  the  answer,  but  upon  equitable  principles,  and 
the  consideration  that  it  is  not  advisable  to  return  the  goods  to  one 
who  must  immediately  yield  them  in  a  second  replevin  by  the  same 
plaintiff,  Pico  t\  Pico,  5G  Calif.  453.  Judgment  for  return  may  be  en- 
tered against  both  the  principal  in  the  bond  and  his  sureties,  or  against 
either  of  them,  according  to  his  circumstances,  Corbett  v.  Pond,  10  Ap. 
D.  C.  17.  In  Texas  the  judgment  for  return  must  permit  the  return 
of  any  goods  replevied,  in  satisfaction  pro  tanto.  Clopton  v.  Goodbar, 
Tex.  Civ.  Ap.  55  S.  W.  972;  Jackson  v.  Nelson,  Tex.  Civ.  Ap.  39  S.  W. 
315.  Plaintiff  appeared  to  have  no  title;  the  defendant  was  an  officer 
and  claimed  under  an  attachment  which  had  been  dissolved;  the  as- 
signee of  the  defendants  in  the  attachment  had  demanded  the  goods  of 
the  officer;  the  court,  inasmuch  as  the  officer's  right  was  terminated 
and  the  assignees  were  not  parties,  so  that  the  judgment  would  not 
bind  them,  refused  to  order  return  of  the  goods  to  the  officer,  merely 
to  enable  him  to  comply  with  the  demand  of  the  assignee,  Gardner  v. 
Lane,  98  Mass.  517.  Finding  of  value  is  not  necessary  to  entitle  de- 
fendant to  a  judgment  of  return,  Adamson  v.  Sundby,  51  Minn.  460,  53 
N.  W.  761.  The  statute  provided  that  if  either  party  shall  have  only 
a  lien  or  special  property  in  tne  goods,  the  finding  shall  be  accordingly, 
and  the  court  shall  render  such  judgment  as  may  be  just.  Another 
statute  provided  that  when  goods  replevied  have  been  attached  they 
shall,  in  case  of  return,  be  held  liable  to  the  attachment  until  final 
judgment  in  the  suit  in  which  they  were  attached,  and  for  thirty  days 


THE  VERDICT.  AND  JUDGMENT.  657 

thereafter;  the  trial  in  a  replevin  suit  in  which  an  attaching  officer 
was  defendant  occurred  before  judgment  in  the  attachment  suit.  Held 
there  could  be  no  judgment  for  return  cf  the  goods  to  the  ofticer.  and 
that  the  section  lirst  cited  refers  lo  other  liens  than  those  accrued  by  the 
levy  of  an  execution  or  attachment,  Frederick  v.  Mecosta  Circuit  Judge, 
bl  Mich.  529.  IS  N.  W.  343.  If  defendant,  pending  the  replevin,  as- 
sign his  interest  in  the  goods  to  another,  he  is  not  entitled  to  return; 
and  the  plaintiff  must  be  permitted  to  show  this  on  the  trial.  Campbell 
r.  Quinton.  4  Kans.  Ap.  317.  45  Pac.  914.  Plaintiff  cannot  complain 
that  the  judgment  against  him  is  for  damages  merely,  and  that  no 
judgment  is  given  for  return  of  the  goods.  Scott  v.  Burrill,  44  Neb.  7r)5, 
62  N.  W.  1093;  Branch  v.  Wiseman,  51  Ind.  1.  A  justice  of  the 
peace  failing  to  enter  judgment  on  a  verdict  in  replevin,  at  the  time  of 
its  return,  thereby  lost  jurisdiction;  at  a  later  day  he  entered  judg- 
ment awarding  the  goods  to  the  plaintiff,  and  for  costs  and  damages. 
The  Circuit  Court  on  certiorari  to  review  this  judgment  has  no  power 
to  award  return  of  the  property  to  defendant.  Smith  r.  Bahr,  62  Wis. 
244.   22  N.   W.   438. 

Where  the  Court  is  without  Jurisdiction. — If  the  court  is  without 
jurisdiction  there  can  be  no  judgment  for  return,  Smith  v.  Fisher,  13 
R.  I.  624;  Gray  r.  Dean,  136  Mass.  128;  Elder  v.  Greene.  ;i4  S.  C.  154. 
13  S.  E.  323;  Widber  v.  Benjamin,  75  Vt.  152,  53  Atl.  1071;  Vogel  v. 
The  People,  37  Ills.  Ap.  388;  State  v.  Letton,  56  Neb.  158,  78  N.  W. 
533;  nor  for  damages.  Id.  Nor  where  the  writ  is  made  returnable  at 
a  day  later  than  prescribed  by  statute,  and  the  action  is  dismissed  on 
this  account,  Reid  v.  Panska,  56  Neb.  195.  78  N.  W.  534;  but  see 
contra,  Novelle  v.  Daw,  94  N.  C.  43;  McDermott  v.  Isbell.  4  Calif.  113. 
Colby  r.  O'Donnell,  38  Ills.  Ap.  196,  Stiraer  v.  Allen,  88  Mich.  140.  50 
N.  W.  107;  Walko  v.  Walko.  64  Conn.  74,  29  Atl.  243;  Bates  v.  Stanley, 
51  Neb.  252.  70  N.  W.  912;  Barruel  v.  Irwin,  2  N.  M.  223;  Coverdale  v. 
Alexander.  82  Ind.  503;  O'Donnell  v.  Colby,  55  Ills.  Ap.  112,— Return  not 
awarded,  unless  demanded. — Return  may  be  awarded  when  the  action 
is  dismissed  for  mere  defect  In  the  service.  Gray  v.  Dean,  136  Mass.  128; 
contra,  when  the  writ  abates  because  no  bond  was  given.  Smith  r. 
Fisher.  13  R.  I.  024.  There  can  be  no  judgment  for  return  unless 
demanded  by  defendant'.s  answer,  Bown  v.  Weppner.  62  Hun.  579. 
17  N.  Y.  Sup.  193;  Banning  r.  Marleau.  101  Calif.  238.  35  I'ac  772. 
Summer  v.  Kelly.  38  S.  C.  508,  17  S.  E.  304.  Ringgenborg  v.  Hartman, 
124  Ind.  180,  24  N.  E.  987;  Lomme  v.  Sweeney.  1  Mont.  584;  Gallup  v. 
Wortman.  11  Colo.  Ap.  308.  53  Pac.  247;  Aultman  v.  O'Dowd.  73  Minn. 
58.  75  N.  W.  756;  Young  v.  Glasscock.  79  Mo.  574.  Merrill  Co.  v.  Nickels. 
00  Mo.  Ap.  078;  Cowling  v.  Oreenleaf,  32  Kans.  392;  but  after  jiKlgini'nl 
for  deffndant  for  coKts  merely  It  Is  wald  that  defendant  cannot  jcKnily 
contest  plalntlfT's  right  to  tin-  poKBCsslon.  Cowling  v.  (Jreenlcaf.  supni. 
And  In  Harvey  v.  Ivory,  35  Wash.  397.  77  Par.  725.  It  wuh  held  that 
the  defendant.  If  the  plalntifr  fallH,  may  have  return  of  the  gooilH  wlih 
but  demanding  It;  the  plaint ifT'H  poKHeHKion.  It  Ih  hbIiI.  Ih  conditioned 
upon  hlH  maintaining  IiIh  action,  and  If  he  falls  the  defondaul  1m  od- 
42 


G5S  THE  LAW  OF  REPLEVIN. 

titled  to  return  as  a  matter  of  right;  and  in  Puller  v.  Thomas,  36  Mo. 
Ap.  105,  although  the  statute  provided  that  judgments  for  return  shall 
be  granted  where  "  the  defendant  in  his  answer  demands  return." 
it  was  held  that  although  defendant  made  no  demand  for  return  of  the 
goods,  a  judgment  for  return,  and  no  other  judgrment,  could  be  given. 
The  latter  cases  seem  in  accord  with  the  rule  that  the  plaintiff  may 
have  such  relief  as  he  shows  himself  to  be  entitled  to,  whether  within 
the  prayer  of  his  complaint  or  not;  the  provision  of  the  code  "  if  the 
defendant  claim  a  return  thereof"  judgment  may  be  for  a  return  of  the 
property,  seems  to  be  of  no  greater  force  than  the  ordinary  provision 
that  the  complaint  shall  contain  "  a  demand  for  the  relief  which  the 
plaintiff  claims."  Under  a  system  which  awards  to  the  plaintiff  what- 
ever relief  he  may  show  himself  entitled  to,  irrespective  of  what  he 
demands,  it  seems  unreasonable  to  hold  the  defendant  to  strict  compli- 
ance with  the  statutory  provision  by  which  the  commonly  received 
doctrine  is  supported. 

AUernctive  Judgment,  for  the  goods  or  value. — The  statute  in  many 
of  the  states  requires  that  if  the  goods  have  not  been  delivered  to  the 
plaintiff,  and  he  prevails,  he  shall  have  judgment  for  the  goods,  or  the" 
value  thereof  if  delivery  cannot  be  had;  and  that  if  the  goods  have 
been  replevied  and  delivered  to  the  plaintiff,  and  defendant  prevails, 
he  shall  have  judgment  for  return  of  the  goods,  or  for  the  value  if 
return  cannot  be  had.  It  is  held  in  many  cases  that  these  provisions 
are  imperative;  that  the  judgment  must  be  in  the  alternative,  McCue  v. 
Tunstead,  66  Calif.  486,  6  Pac.  316,  Brichman  v.  Ross,  67  Calif.  601,  8 
Pac.  316;  Baxter  v.  Berg,  88  Wis.  400,  60  N.  W.  711;  Cooke  v.  Aguirre, 
86  Calif.  479.  25  Pac.  5;  Meads  v.  Lasar,  92  Calif.  221,  28  Pac.  935;  Foss 
V.  Marr,  40  Neb.  559,  59  N.  W.  122;  Robbins  v.  Slattery,  30  S.  C.  328,  9 
S.  E.  510;  Guille  v.  Wong  Fook,  13  Ore.  577,  11  Pac.  277;  Reed  v.  King, 
89  Ky.  388,  12  S.  W.  772;  Manker  v.  Sine,  35  Neb.  746,  53  N.  W.  734; 
Goodwin  v.  Potter,- 40  Neb.  553,  58  N.  W.  1128;  Field  v.  Lumbard,  53 
Neb.  397,  73  N.  W.  703;  Meeker  v.  Johnson,  3  Wash.  247,  28  Pac.  542; 
Hanf  V.  Ford,  37  Ark.  544,  Hall  v.  Jenness,  6  Kans.  356.  The  plaintiff 
may  insist  upon  the  alternative  judgment,  though  the  defendant  waives 
it.  Meeker  v.  Johnson,  supra.  Plaintiff's  sureties,  it  is  said,  contract 
with  reference  to  the  statute,  and  are  not  bound  if  the  statute  is  de- 
parted from,  Lee  v.  Hastings,  13  Neb.  508,  14  N.  W.  476,  Field  v.  Lum- 
bard, supra.  But  although  the  plaintiff  fail  if  it  appears  that  the  de- 
fendant has  no  interest  in  the  chattels,  he  is  not  entitled  to  recover 
the  value.  Darling  v.  Tegler,  30  Mich.  54,  Cunningham  v.  Metropolitan 
Co.,  49  C.  C.  A.  72,  110  Fed.  332.  When  plaintiff  prevails  and  is  already 
in  possession  of  the  goods,  there  can  be  no  alternative  judgment  for 
the  value;  and  an  error  in  the  assessment  of  the  value  is  immaterial, 
Marrinan  v.  Knight,  7  Okla.  419,  54  Pac.  656;  Hanlon  v.  Goodyear,  103 
Mo.  Ap.  416,  77  S.  W.  481.  And  so  where  the  plaintiff  fails  to  give  bond, 
and  the  property  not  being  replevied,  the  action  proceeds  for  the  value, 
Philleo  V.  McDonald,  27  Neb.  142,  42  N.  W.  904,  Sloan  v.  Fist,  Neb.,  89 
N.  W.  760,  Babb  v.  Aldridge,  45  Kans.  218,  25  Pac.  558,  Tuckwood  v^ 


THE  VERDICT  AND  JUDGMENT.  659 

Kanthorn,  67  Wis.  320.  30  N.  W.  705.  There  need  be  no  judgment  for 
the  goods  and  the  judgment  may  be  absolute  for  the  value  if  the  record 
shows  that  the  return  is  impossible,  Lee  v.  Hastings,  supra:  Selby  v. 
McQuillan.  59  Neb.  158,  80  N.  W.  504;  Ulrich  v.  McConaughey.  63  Neb.  10. 
88  N.  W.  150;  Meads  v.  Lasar,  supra;  Eisenhart  r.  McGarry,  15  Colo.  Ap. 
1,  61  Pac.  56;  Cathey  v.  Bowen.  70  Ark.  348.  68  S.  W.  31.  So  where  it 
appears  that  the  goods  of  one  stock  have  been  so  mingled  and  confused 
with  another  as  to  be  indistinguishable;  or  the  goods  have  been  de- 
stroyed while  in  plaintiffs  possession,  and  the  circumstances  are  not 
shown,  Epperson  v.  Van  Pelt,  9  Baxt.  73.  Selignian  v.  Armando,  94 
Calif.  314,  29  Pac.  710.  And,  semble  no  matter  what  may  have  been  the 
circumstances,  Richardson  Co.  v.  Teasdall,  59  Neb.  150,  80  N.  W.  488; 
or  the  goods  have  been  sold  by  the  party  in  possession,  Hanchett  v. 
Humphreys.  84  Fed.  862;  or  substantially  all  of  them  have  been  sold: 
the  fact  that  a  small  portion  remained  upon  hand,  is  not  material, 
Caldwell  v.  Ryan,  Mo.  Ap.  79  S.  W.  743;  or  the  defeated  plaintiff  has 
allowed  a  lien  to  accrue  upon  the  goods  for  storage  while  in  his  pos- 
session, Taylor  v.  Richardson,  4  Houst.  303.  But  the  defendant  cannot 
complain  of  an  alternative  judgment,  even  though  it  appears  by  the 
evidence  that  the  goods  cannot  be  returned,  Leonard  v.  McGinnis,  34 
Minn.  506,  26  N.  W.  733;  and  an  alternative  judgment  may  go,  even  al- 
though the  defendant  had  wrongfully  parted  with  the  chattels  before 
the  institution  of  the  action.  Holliday  v.  Poston,  60  S.  C.  103.  38  S.  E. 
449.  It  will  be  presumed  in  support  of  a  judgment  for  the  value, 
absolutely,  that  the  court  had  become  judicially  satisfied  that  return 
could  not  be  had,  Boley  v.  Griswold,  20  Wall.  486,  22  L.  Ed.  375.  An 
absolute  judgment  for  the  value  is  equivalent  to  a  declaration  that  re- 
turn is  impossible.  McCarthy  v.  Strait.  7  Colo.  Ap.  59.  42  Pac.  189.  But 
in  Hall  v.  Law.  etc.,  Co.,  22  Wash.  305,  60  Pac.  643,  It  was  held  that 
judgment  for  the  value  without  any  alternative, -cannot  be  sustained, 
although  the  defendant  asserts  title  to  the  goods  by  his  pleading,  and 
the  evidence  shows  that  they  cannot  be  returned;  the  court  seem  to  be 
of  the  opinion  that  only  the  return  upon  an  execution  is  competent  evi- 
dence of  the  impossibility  of  restoration  of  the  goods.  Judgment  can- 
not be  entered  for  the  value  unless  it  is  found  that  the  party  is  entitled 
to  the  goods  themselves,  Washburn  v.  Huntington.  78  Calif.  573,  21  Pac. 
305,  Riciotto  V.  Clement,  94  Calif.  105,  29  Pac.  414.  The  deftindunfs 
prior  possession  is  sufficient  to  entitle  him  to  a  judgment  for  the  value, 
where  no  right  appears  in  the  plaintiff,  Steero  r.  VanderlMTg,  90  Mich. 
187,  51  N.  W.  205,  Salter  r.  Suilierland,  125  Mich.  W2.  85  N.  W.  112;  and 
he  1b  not  required  to  show  title  as  against  the  worlil;  he  taki's  Judgnii-ni 
for  the  value  and  holds  It  for  the  owner's  benefit,  if  not  himself  en- 
titled,  /'/.;  even  although  the  tlefendanl  Is  mere  lialh-e.  because  ac 
countable  to  the  true  owner,  Whitney  v.  Hyde.  91  Mich.  13.  51  N.  W.  C9C. 
Where  a  portion  of  the  goodH  have  been  sold  by  defendant  and  the  regt 
voluntarily  Hurrendered  before  the  trial,  judgment  need  not  be  In  the 
alternative;  and  the  court  upon  appeal  assumed  that  the  value  found 
waji  the  value  of  the  goodu   which   had   been  Hold   by   the  defen<lunt. 


) 


660  THE  LAW  OF  REPLEVIN. 

Clouston  V.  Gray,  48  Kans.  31,  28  Pac.  983.  If  the  defendant  claims 
merely  the  right  of  possession,  the  court  may  give  judgment  for  this 
merely;  but  only  in  case  it  is  ascertained  by  the  jury,  Jameson  v.  Kent, 
42  Neb.  412,  fiO  N.  W.  879.  In  other  courts  it  is  held  that  the  plaintiff 
cannot  complain  of  an  absolute  judgment  for  the  value,  if  the  defendant 
is  satisfied  therewith,  Stroud  v.  Morton,  70  Mo.  Ap.  647. 

But  where  the  successful  party  has  a  special  interest,  and  is  not  the 
general  owner,  he  takes  judgment  for  the  value  of  such  interest  merely, 
and  not  for  the  full  value,  Ormsby  v.  Nolan,  69  la.  130.  28  N.  W.  569; 
Bleiler  v.  Moore,  88  Wis.  438,  60  N.  W.  792;  Adams  v.  Wood,  51  Mich. 
411,  16  N.  W.  788;  Gaston  v.  Johnson,  107  Mo.  Ap.  590,  80  S.  W.  276; 
Creighton  v.  Haythorn,  49  Neb.  526,  68  N.  W.  934.  Even  although  the 
statute  directs  a  judgment  for  the  value.  Dilworth  v.  McKelvey,  30  Mo. 
149;  e.  g.,  where  the  plaintiff  and  defendant  are  tenants  in  common, 
Kehoe  v.  McConaghy,  29  Wash.  175,  69  Pac.  742;  but  see  contra. 
Clapham  v.  Crabtree,  72  Me.  473;  or  the  successful  party  holds  the  goods 
in  pledge,  Miles  v.  Walther,  3  Mo.  Ap.  96;  or  is  a  mere  mortgagee;  he  is 
entitled  merely  to  the  amount  of  his  mortgage.  Deal  v.  Osborne,  42 
Minn.  102,  43  N.  W.  835;  National  Bank  of  Commerce  v.  Feeney,  9  S.  D. 
550,  70  N.  W.  874;  Wyandotte  Bank  r.  Simpson,  8  Kans.  Ap.  748,  55  Pac. 
347;  Harvey  v.  Stephens,  159  Mo.  486.  GO  S.  W.  1055;  Bates  v.  Snyder,  59 
Miss.  497;  Miller  v.  Adamson,  45  Minn.  99,  47  N.  W.  452;  Gaynor  v. 
Blewitt,  69  Wis.  582,  34  N.  W.  725;  Scott  v.  Beard,  5  Kans.  Ap.  560,  47 
Pac.  986;  and  payments  made,  pending  the  litigation  must  be  allowed. 
Wood  V.  Weimar,  14  Otto.  786,  26  L.  Ed.  779,  Kerr  v.  Drew,  90  Mo.  147. 
But  in  some  courts  it  is  held  that  rhortgagee  recovers  the  full  value, 
holding  any  surplus  over  the  mortgage  for  the  benefit  of  the  mortgageor 
or  whoever  may  be  entitled.  Allen  v.  Butraan,  138  Mass.  586,  Stevenson 
V.  Lord,  15  Colo.  131,  25  Pac.  313.  Where  the  successful  party  is  an  oflScer 
claiming  under  an  execution,  he  recovers  only  the  amount  of  the  judg- 
ment, with  interest,  Witkowski  v.  Hill,  17  Colo.  372,  30  Pac.  55;  Friend 
V.  Green,  43  Kans.  167,  23  Pac.  93;  Levy  v.  Leatherwood,  Ariz.,  52  Pac. 
359;  Kersenbrock  v.  Martin,  12  Neb.  374,  11  N.  W.  462.  And  where  the 
party  prevailing  is  an  officer  and  claims  under  levy  of  an  execution, 
and  the  goods  were  mortgaged  for  their  full  value  prior  to  the  incipi- 
ency  of  the  execution  lien,  only  nominal  damages  can  be  allowed  to  the 
officer, "Geisendorff  v.  Eagles,  70  Ind.  418;  and  this  too  even  though  the 
mortgagee  is  not  asserting  his  interest  or  complaining.  Id.  The  vendor 
replevying  goods  for  default  in  the  purchase  price,  the  defendant  pre- 
vailing, is  entitled  to  a  return,  or  the  value  less  what  remains  due  of 
the  agreed  price,  Hoffman  v.  Gorman,  123  Mich.  485,  82  N.  W.  225; 
Hodges  V.  Cummings,  115  Ga.  1000,  42  S.  E.  394.  If  the  plaintiff  sues 
as  mortgagee,  the  defendant  by  proof  that  nothing  remains  due  of  the 
indebtedness,  defeats  the  action.  Bates  v.  Snyder,  59  Miss.  497;  and  if 
the  indebtedness  is  denied  the  judgment  must  extend  to  and  determine 
this  issue,  Griffith  v.  Richmond,  126  N.  C.  377,  35  S.  E.  620.  Where 
judgment  is  given  for  the  value  of  a  special  interest  it  must  not  ex- 
ceed the  general  value,  Cruts  v.  Wray,  19  Neb.  581,  27  N.  W.  634.     And 


THE  VERDICT  AND  JUDGMENT.  661 

where  the  officer  fails  to  show  the  amount  of  his  claim  .ind  waives  re- 
turn of  the  goods,  he  is  not  entitled  to  anything  as  the  value,  Weber 
r.  Henry,  16  Mich.  399;  and  see  Moore  r.  Shaw,  1  Kans.  Ap.  103,  40 
Pac.  929;  Shields  i-.  Moody,  120  Mich.  472.  79  N.  W.  684.  One  who  re- 
covers gold  coin  can  have  judgment  only  for  the  face  value,  even  though 
the  judgment  be  payable  in  treasury  notes,  then  at  a  great  discount. 
"Warner  r.  Sauk  County  Bank.  20  Wis.  492.  Where  the  defendant  by 
procuring  an  injunction  prevents  the  sheriff  from  seizing  the  goods 
under  the  writ  of  replevin,  the  plaintiff  may  recover  the  full  value. 
Miller  r.  W'arden.  Ill  Pa.  St.  300,  2  Atl.  90.  Where  the  judgment  is  for 
return  of  the  goods  or  payment  of  the  full  value,  the  plaintiff  cannot 
complain  that  the  defendant  has  a  mere  special  interest  in  the  entire 
property,  because  he  may  return  the  goods,  and  so  save  himself. 
Ormsby  i'.  Nolan,  supra.  Plaintiff  may  recover  the  value  of  his  interest, 
though  at  the  institution  of  the  suit  he  was  not  entitled  to  possession, 
if  in  the  meantime  the  only  impediment  to  his  right  has  been  removed, 
as,  by  the  sale  of  the  goods,  and  the  payment  of  an  encumbrance  thereon 
subsisting  at  the  institution  of  the  suit,  Harward  i\  Davenport,  105  la. 
592,  75  N.  W.  487.  If,  at  the  trial,  the  defeated  party  has  an  interest 
he  will  be  allowed  for  that,  even  although  he  is  plaintiff  and  had  no 
interest  at  the  institution  of  the  suit.  Guy  v.  Doak,  47  Kans.  236,  366,  27 
Pac.  968.  And  the  successful  party  is  limited  to  the  amount  of  his  lion, 
only  where  his  adversary  is  the  general  owner.  Shields  v.  Moody,  supra. 
Replevin  by  conditional  vendor  upon  default  in  a  portion  of  the  pur- 
chase money;  the  defendant  retained  the  goods;  judgment  was 
given  that  plaintiff  should  bring  into  court  the  unpaid  notes  for  the 
purchase  money  to  be  delivered  to  defendant  upon  payment  of  the  judg- 
ment; the  notes  being  so  deposited,  judgment  was  entered  against  de- 
fendant and  his  sureties  for  the  amount  thereof,  Hyland  r.  Bohn  Co., 
92  Wis.  157.  65  N.  W.  170.  If  the  plaintilT  is  a  stranger  to  the  title 
the  entire  value  may  be  recovered  by  the  owner  of  the  special  Interest, 
and  he  is  answerable  to  the  general  owner  for  what  remains  after  his 
special  claim  is  satisfied,  Dilworth  i?.  McKelvey,  30  Mo.  149.  The  judg- 
ment in  every  case  must  be  framed  according  to  circumstances,  so  that 
the  merits  of  the  whole  controversy  may  be  settled  in  one  action,  Dil- 
worth I'.  McKelvey,  supra,  North  wall  Co.  r.  McCormIck  Co.,  2  Neb. 
L'noff.  699,  89  N.  W.  767.  Where  dt-fendant  juHlitles  as  sheriff,  under 
an  execution  against  a  third  person,  and  prevails,  and  the  jury  find 
that  the  property  is  in  such  third  persou.  the  sheriff  recovers  the  full 
value.  Coos  Bay  Co.  r.  Siglin.  34  Ore.  80.  53  Pac.  504.  Tlie  surcesBfiil 
party  cannot  recover,  as  the  value,  a  greater  sum  than  In  hlH  ploadUiKH 
he  has  alleged  as  the  value.  Monday  v.  Vance,  Tex.  Civ.  Ap..  51  S.  W.  346. 
Best  I'.  Stewart.  48  Neb.  860.  67  N.  W.  881.  And  Judgment  for  the  vnluo 
of  the  whole,  where  the  BuccesHful  party  only  cl.ilniH  a  moiety.  Ih  error, 
Ela  V.  BankoK,  37  WIh.  89.  The  HUcceHsful  parly  niuHt  Hhow  the  amount 
of  his  Hpecial  IntereHt,  Shahan  v.  Hinitli.  liH  Khuh.  474.  16  I'nc  749;  and 
the  value  of  It,  Wagner  Co.  r.  IlobUiHon.  81  N.  V.  Sup.  281.  WIMIuiiim  t  . 
Elkenberry,  22  Neb.  lilo,  .U  N    W    37.T.     And  evidence  of  what  the  p;iity 


662  THE  LAW  OF  REPLEVIN. 

paid  will  not  suffice,  Wagner  Co.  v.  Robinson,  supra.  But  the  face  value 
of  a  municipal  bond  will,  in  the  absence  of  evidence,  be  taken  to  be 
the  market  value,  Meixell  v.  Kirkpatrick,  33  Kans.  282,  6  Pac.  241. 
The  jury  must  find  the  value,  Clinton  v.  Stovall,  45  Mo.  Ap.  642.  And 
plaintiff  may  have  judgment  for  the  value,  although  he  makes  no  de- 
mand for  the  value  in  his  complaint,  Yolton  v.  Slinkhard,  85  Ind.  19L 
Where  there  is  an  alternative  judgment  and  the  sheriff  returns  upon 
the  execution  that  the  goods  cannot  be  had,  the  judgment  becomes 
a  judgment  for  money,  and  damages  allowed  by  statute  upon  affirma- 
tion thereof  are  to  be  computed  upon  the  judgment  for  the  value 
and  the  judgment  for  damages  as  well,  Rennebaum  v.  Atkinson,  105 
Ky.  396,  49  S.  W.  1,  342.  The  value  is  to  be  estimated  as  of  the  date 
of  the  wrongful  taking,  and  interest  may  be  added,  with  such  special 
damages  as  the  plaintiff  may  show  himself  entitled  to,  Gardner  v. 
Brown.  22  Nev.  156.  37  Pac.  240.  Newberry  v.  Gibson.  Iowa,  101  N.  W. 
428,  Hoester  v.  Teppe,  27  Mo.  Ap.  207;  but  only  where  the  property  is 
not  of  fluctuating  value,  Benjamin  v.  Huston,  16  S.  D.  569,  94  N.  W.  584. 
In  some  jurisdictions  the  value  is  estimated  as  of  the  time  of  the  trial. 
Miller  v.  Bryden,  34  Mo.  Ap.  602,  La  Vie  v.  Crosby,  43  Ore.  612,  74  Pac. 
220,  Nolan  v.  Sevine,  Tex.  Civ.  Ap.  81  S.  W.  990;  and  if  the  thing  sued 
for  is  an  animal  or  a  slave,  and  dies  pending  the  litigation,  the  party 
takes  nothing.  Pope  v.  Jenkins,  30  Mo.  528.  And  where  the  defendant 
has  eloigned  and  scattered  the  goods,  the  plaintiff  may  prove  and  re- 
cover their  value  when  last  accessible  to  him,  in  the  absence  of  counter- 
vailing evidence,  Jenness  v.  Spa,rkman,  48  Mo.  Ap.  246;  or  the  value 
may  be  estimated  as  of  the  day  of  the  caption,  Westbay  v.  Milligan, 
74  Mo.  Ap.  179.  The  court  may  allow  inquiry  as  to  the  proper  and 
customary  market  for  the  commodity  in  question;  the  value  will  be 
controlled  by  that  market,  Porter  v.  Chandler,  27  Minn.  301,  7  N.  W. 
142.  In  replevin  for  vouchers  or  receipted  bills  of  a  builder,  the  value 
must  be  left  to  the  sound  discretion  of  the  jury;  the  plaintiff  may  re- 
cover the  value  to  him,  though  of  little  value  to  others,  Drake  v. 
Auerbach,  37  Minn.  505,  35  N.  W.  367.  And  the  value  of  the  use  during 
the  detention  is  allowed,  if  the  property  might  have  been  employed.  La 
Vie  V.  Crosby,  supra.  Even  though  defendant  is  an  officer,  and  was  not 
entitled  to  use  the  property,  Broadwell  v.  Paradise,  81  111.  474.  It  seems 
that  judgment  may  in  some  cases  be  granted  apportioning  the  value 
between  the  several  defeated  parties,  awarding  a  part  against  each, 
Kean  v.  Zundelowitz,  9  Tex.  Civ.  Ap.  350,  29  S.  W.  930. 

Judgment  of  Another  State. — A  judgment  in  replevin  rendered  in 
one  state  will  be  accorded  full  faith  in  another  state;  but  it  will  not  be 
presumed,  in  opposition  to  the  doctrine  prevailing  in  the  latter  state, 
that  every  matter  in  issue  was  in  fact  tried  and  determined;  and 
where  it  is  shown  that  only  one  question  was  in  fact  determined,  the 
judgment  will  be  accepted  as  conclusive,  only  as  to  that  fact.  Tootle  v. 
Buckingham,  190  Mo.  183,  88  S.  W.  619.  The  plaintiffs  held  mortgages, 
duly  recorded  in  Kansas  of  cattle  situated  there.  The  mortgageor's  res- 
idence was  the  same  state.    The  mortgageor  unlawfully  sold  the  cattle 


THE  VERDICT  AND  JUDGMENT.  663 

and  in  a  replevin  instituted  in  Kansas  in  the  name  of  an  agent  of  the 
plaintiffs,  the  cattle  were  replevied,  sent  to  Missouri  and  there  sold. 
Plaintiffs  indemnified  the  surety  in  the  replevin  bond  on  that  occasion. 
Judgment  was  given,  upon  technical  grounds  in  favor  of  defendant,  for 
return  of  the  cattle,  or  their  value,  and  this  judgment  was  at  once  as- 
signed, and  passed  by  later  assignments  to  defendants.  The  court  In 
Missouri  restrained  the  defendants  from  executing  the  judgment  re- 
covered in  Kansas.     Tootle  v.  Buckingham.  190  Mo.  1S3,  88  S    W.  619. 

Construction  and  Effect  of  the  Judgment. — Judgment  that  the  cause 
be  dismissed  "  and  that  the  writ  of  retorno  habendo  be  and  hereby  is 
awarded,"  entitles  defendant  to  recover,  in  the  action  on  the  bond,  the 
value  of  the  goods  replevied  and  which  are  not  returned.  Tanton  v. 
Slyder.  93  Ills.  Ap.  457;  Luthy  v.  Kline,  56  Ills.  Ap.  314;  contra.  Ameri- 
can Co.  t'.  Bishop.  184  Ills.  68,  56  N.  E.  382.  A  judgment  declaring 
that  plaintiff  and  defendant  are  tenants  in  common,  that  therefore  the 
action  cannot  be  maintained,  and  directing  its  discontinuance  without 
prejudice  to  the  foreclosure  of  a  mortgage  under  which  the  plaintiff 
claims,  is  a  judgment  upon  the  merits.  Boom  r.  St.  Paul  Co..  33  Minn. 
253,  22  N.  W.  538.  If  plaintiff  take  judgment  for  "  Immediate  pos- 
session"  of  the  goods,  "and  in  default  of  recovery  of  such  possession." 
for  the  value,  it  is  an  election  to  have  a  return  of  the  goods;  and  when 
he  obtains  possession  of  them  it  is  his  duty  upon  payment  of  the  costs 
to  enter  satisfaction;  execution  against  the  lands  or  goods  of  the  de- 
fendant will  be  enjoined,  Oskaloosa  Works  r.  Nelson.  54  la.  519.  6  N.  \V. 
718.  In  Marshal  v.  Livingston.  77  Ga.  21,  cited  Thomas  r.  Price,  88  Ga. 
533,  15  S.  E.  11,  it  was  said  that  the  mere  dismissal  of  the  suit  amounts 
in  law  to  a  judgment,  and  entities  defendant  ipso  facto  to  a  ft.,  fa.  for 
the  value,  against  plaintiffs  and  his  sureties.  Plaintiff  sued  for  two 
horses  and  other  goods,  including  one  hearse,  the  answer  was  a  general 
denial,  averring  that  defendant  was  the  owner  of  the  hearse,  and  de 
manding  judgment  for  its  return;  defendant,  then  in  pursuance  of  the 
code  provision  respecting  the  compromise  of  actions,  served  plaintiff 
with  an  offer  that  he  might  take  judgment  for  all  the  articles  except  the 
hearse,  and  his  costs;  this  offer  was  accepted  and  judgment  was  entered 
accordingly.  Held  that  defendant  was  entitled  to  the  hearHc  and  might 
maintain  replevin  for  it.  Shepherd  v.  Moodhe,  150  N.  Y.  183.  41  N.  E. 
963. 

Judgment  for  the  plaintiff  involves  a  finding  that  plaintiff  is  entitled 
to  the  immediate  poHsesslon,  Allen  v.  Ilutman,  138  Mass.  586.  Hut 
otherwise,  where  the  issue  Is  tried  without  a  jury  and  the  court  muke8 
special  findings  of  fact  and  there  Is  no  finding  upon  thiH  |8hu«-,  Cooke  t'. 
Agulrre,  86  ('alif.  479,  25  Par.  5.  It  hccujh  tlu'  judgment  must  be 
conHtrued  with  reference  to  the  plaintiff'K  Htatcni«'iit  or  plcudliigH;  It 
affectM  only  the  goodH  demanded,  though  other  goodH  iiri>  replevied. 
Standard  Co.  v.  SchloBH.  43  Mo.  Ap.  3(»4.  A  judgment  conclud«'H  tlu« 
partleH  only  in  reHpect  to  niatlerH  in  iHHue,  and  not  hh  to  the  collntfral 
factH  appearing  In  evidence  to  eHtabllHh  Ihw  iHHue.  Judgnient  In  r«*- 
plevln  for  certain  wlieat  deRcrlbed  an  "  1100  buHhelH  of  wlieat   rcci-ntly 


664  THE  LAW  OF  REPLEVIN. 

damaged  by  fire,"  does  not  estop  the  plaintiffs  recovering  such  judg- 
ment to  deny  that  the  wheat  was  in  excess  of  1100  bushels,  or  that  they 
were  responsible  to  defendants  in  the  action  under  previous  arrange- 
ments for  more  than  1100  bushels,  where  iheir  action  in  instituting  the 
replevin  had  been  induced  by  representations  of  the  defendants  as  to 
the  amount  of  the  wheat,  Voge  v.  Breed,  14  Ills.  Ap.  539. 

All  parties  are  bound  by  the  judgment  in  replevin,  Pilger  v.  Marder, 
55  Neb.  113,  75  N.  W.  559;  and  all  privies.  Hill  v.  Reitz,  24  Ills.  Ap. 
391.  It  seems  that  a  judgment  against  the  sheriff  for  goods  taken  as 
the  property  of  A  is  conclusive  upon  A's  assignee  for  creditors,  Boyden 
V.  Frank,  20  Ills.  Ap.  169.  The  discontinuance  of  the  action  and  the 
return  of  the  goods  is  no  bar  to  an  action  of  trespass  dc  bonis  for  the 
same  taking,  Stier  v.  Harms,  154  Ills.  476,  40  N.  E.  296;  and  the  owner 
may  sustain  trover,  notwithstanding  a  former  judgment  for  return  in 
replevin;  even  though  in  that  action  the  plaintiff  might  have  had  judg- 
ment in  the  alternative  for  the  value,  Nickerson  v.  California  Co.,  10 
Calif.  520.  And  judgment  for  return  not  performed,  is  no  bar  to  a 
cross-replevin  by  the  defendant  in  the  original  suit,  Douglas  v.  Galwey, 
76  Conn.  683,  58  Atl.  2.  Judgment  for  possession  of  a  note,  which, 
during  its  unlawful  detention  by  defendant  is  barred  by  the  Statute 
of  Limitations,  though  performed,  does  not  bar  an  action  against  de- 
fendant for  detaining  the  note  until  the  action  thereon  was  barred.  Fair 
V.  Citizens'  Bank,  69  Kans.  353,  76  Pac.  847.  Judgment  for  defendant 
for  return,  but  no  finding  of  value,  nor  judgment  for  the  value;  the  de- 
fendant not  obtaining  the  goods,  may  afterwards  sue  for  the  conversion, 
even  though  the  statute  requires  that  the  jury  shall  assess  the  value  in 
tne  action  of  replevin,  and  that  the  judgment  shall  be  for  return  or 
for  the  value  at  the  election  of  the  defendant,  Caldwell  v.  Ryan,  Mo. 
Ap.  79  S.  W.  743.  And  judgment  in  favor  of  the  defendant  terminates 
all  occasion  of  controversy  as  to  the  possession;  payment  of  the  judg- 
ment constitutes  plaintiff  the  owner,  whether  he  had  title  previously 
or  not,  Tinsley  v.  Block,  98  Ga.  243,  25  S.  E.  429.  But  the  judgment  in 
such  case  does  not  preclude  defendant  from  asserting  title,  Id.  The 
vendor  of  goods  brought  an  action  of  replevin  therefor  on  the  ground 
of  fraudulent  misrepresentation  by  the  buyer  in  the  purchase;  after  this 
action  had  been  at  issue  for  three  years  it  was  discontinued  for  want 
of  prosecution,  and  vendor  then  sued  for  the  price  of  the  goods.  The 
judgment  in  replevin  was  pleaded  in  bar.  Held  that  the  plaintiffs  in 
this  action  should  not  be  permitted  to  show  that  the  replevin  was  in- 
stituted under  a  mistake  of  facts,  without  full  knowledge,  and  recover 
the  purchase  price  of  the  goods  less  by  the  value  of  what  had  been  taken 
in  the  replevin;  that  the  suit  in  replevin  was  a  rescission  of  the  sale 
and  an  election  from  which  plaintiffs  could  not  recede,  Fisher  v.  Brown, 
111  Ills.  Ap.  486.  Plaintiffs  recovered  judgment  in  the  alternative  for 
the  return  of  an  engine  or  its  value.  The  sheriff  seized  the  engine 
under  execution  and  sold  it  for  $200,  returning  that  it  was  not  in  as 
good  condition  as  when  replevied,  and  therefore  he  could  not  return  it 
to  the  plaintiff;    plaintiff  then  brought  an   action  setting  forth  these 


THE  VERDICT  AND  JUDGMENT.  665 

facts  and  praying  judgment  for  $400.  A  demurrer  to  the  complaint 
was  held  properly  sustained.  The  court  said  if  they  were  entitled  to 
any  judgment  they  already  had  it,  Paulson  v.  Nichols  Co.,  8  N.  D.  606, 
80  N.  W.  765. 

Defendant,  a  mere  bailee,  prevailed,  but  took  judgment  for  costs 
merely.  Held  that  the  bailor,  though  he  conducted  the  defense  of  this 
action,  might  maintain  an  independent  action  for  the  taking,  Johnson 
V.  Boehme,  66  Kans.  72,  71  Pac.  243.  Where,  under  the  statute  the  de- 
fendant, upon  plaintiff's  becoming  nonsuit,  elects  to  take  judgment  for 
the  value,  the  property  in  the  goods  vests  at  once  in  the  plaintiff;  the 
plaintiff  cannot  defeat  the  judgment  by  returning  the  goods. 

But  it  seems  that  the  judgment  does  not  bar  a  second  action  by  the 
plaintiff;  that  he  is  not  bound  in  such  second  action  to  prove  any  con- 
version subsequent  to  the  nonsuit;  and  if  he  prevails  he  may  recover  the 
value  of  the  goods,  Tinsley  r.  Block.  98  Ga.  243.  2.'j  S.  E.  429.  Judg- 
ment in  replevin  for  live  stock  does  not  bar  the  defendant  of  an  action 
for  previous  sustenance  and  training,  Wright  r.  Broome,  67  Mo.  Ap. 
32.  Pending  the  replevin  the  defendant  sells  the  animal  which  is  the 
subject  of  the  action  and  causes  it  to  be  removed  out  of  the  state; 
judgment  in  the  alternative  and  satisfaction  thereof,  the  plaintiff  hav- 
ing refused  to  accept  the  money,  does  not  bar  the  plaintiff's  action  for 
damages,  Hanlon  r.  O'Keefe,  55  Mo.  Ap.  528. 

Judgment  against  a  bailor  is  conclusive  upon  his  bailee,  but  not 
vice  versa.  Standard  Co.  v.  Schloss,  43  Mo.  Ap.  304;  but  judgment  again  t 
the  bailee  is  conclusive  upon  the  bailor  if  the  latter  assumes  the  defense 
of  the  action  or  concurs  in  it,  SIcKinzie  v.  Baltimore  Co.,  28  Md.  161. 
The  judgment  in  replevin  is  conclusive  upon  parties  and  privies,  Daw- 
son V.  Sparks,  77  Ind.  88;  but  only  where  the  precise  question  was 
raised  and  necessarily  determined,  Schwarz  i'.  Kennedy,  Fed.  63  Cent. 
L.  J.  12,  (1906).  Judgment  that  defendant  is  the  owner  of  the  goods 
and  entitled  to  a  return,  is  conclusive  between  the  parties  to  the  action, 
and  binds  the  sureties  in  the  bond.  Woods  v.  Kessler,  93  Ind.  356,  Smith 
V.  Mosby,  98  Ind.  446.  A  judgment  in  favor  of  a  mortgagee,  for  the 
amount  of  a  chattel  mortgage  under  which  the  party  claims.  Is  con 
elusive  in  an  action  upon  the  replevin  bond,  that  he  was  damnified  In 
the  amount  of  the  judgment.  Stafford  v.  Baker,  Mich.  104  N.  W.  321. 
The  judgment  settles  the  right  of  the  parties  In  the  goods  which  m«' 
in  controversy,  Paulson  v.  Nichols  Co.,  8  N.  D.  606.  80  N.  W.  7C.*i. 
Whore  no  return  is  demanded  defendant  takes  jiidgment  for  costs 
merely,  and  he  cannot  afterwards  contest  the  plaintiff's  right  to  the 
goods.  Cowling  V.  Greenleaf.  32  Kans.  392.  4  Pac  855.  The  JuilKnicnl 
for  the  plaintiff,  the  pleas  being  non  crpit,  non  (IrlinrI,  and  property  in 
the  defendant,  establlshea  the  right  of  the  plaint  Iff  to  the  poHBeMslon 
of  the  goods,  Housh  r.  Washburn,  88  Ills.  215.  Before  a  juHtlce  the 
defendant  prevails;  plainiirf  appeals  and  diHmlKHi'H  hlH  app<>iil:  tin- 
merltH  of  the  case  are  dct<Tmlin*d  by  th<>  JmlKmi-nt  of  the  jiiHtl<-««  und 
not  to  be  opened  in  an  a<  tlon  on  the  lK»n<l,  MytTB  v.  Dixon,  106  lllit. 
Ap.  322. 


CG6  THE  LAW  OF  REPLEVIN. 

A  judgment  in  replevin  that  defendant  recover  the  chattel,  does  not 
necessarily  determine  the  nature,  character  or  extent  of  the  defendant's 
right,  and  is  equally  consistent  with  the  supposition  that  the  defendant 
was  a  mere  mortgagee  or  had  some  special  right,  Armel  v.  Layton,  33 
Kans.  41,  5  Pac.  441.  Such  judgment,  where  the  record  fails  to  disclose 
the  claim  asserted  by  the  defendant,  is  not  conclusive  upon  the  title; 
it  may  be  shown  in  an  action  on  the  bond  that  the  plaintiff  in  the 
replevin  was  not  the  owner.  Pearl  v.  Garlock,  61  Mich.-  419.  28  N.  W. 
155.  The  judgment  in  replevin  is  not  conclusive  upon  the  title  even  as 
between  the  parties.  Miles  v.  Walther,  3  Mo.  Ap.  96,  Standard  Co.  v. 
Schloss,  43  Mo.  Ap.  304.  Where  the  only  issue  litigated  is  the  right  to 
possession,  the  defeated  plaintiff  is  not  precluded  from  showing  in 
mitigation  of  damages,  in  an  action  on  the  bond,  a  mortgage  lien  on  the 
goods  superior  to  any  right  of  the  plaintiff,  McFadden  v.  Ross,  108  Ind. 
512,  8  N.  E.  IGl.  A  judgment  for  defendant,  because  the  action  was 
instituted  without  demand,  does  not  bar  a  second  suit  instituted  after 
demand,  Roberts  v.  Norris,  67  Ind.  386.  An^J  where  the  plaintiff  seeks 
only  to  recover  possession,  a  judgment  for  the  defendant  determines 
only  the  right  of  possession,  Kramer  th  Matthews,  68  Ind.  172.  Where 
the  title  was  not  litigated  in  the  replevin;  e.  g.,  where  the  writ  is 
abated,  or  the  plaintiff  suffers  a  nonsuit  or  retraxit  or  naglects  to  enter 
his  suit,  the  judgment  for  return  is  not  an  adjudication  of  the  title, 
Feilding  v.  Silverstein,  70  Conn.  00.5,  40  Atl.  454;  Easter  v.  Foster,  173 
Mass.  39,  53  N.  E.  132. 

But  if  the  title  is  put  in  issue  and  determined  in  replevin,  the  judg- 
ment is  conclusive  in  the  suit  on  the  bond,  Easter  v.  Foster,  supra. 
Le  Mert  brought  replevin,  gave  bond  and  replevied  the  property;  there 
was  a  general  verdict  for  the  defendants  and  a  judgment  against  Le 
Mert  for  costs,  no  damages  were  awarded;  the  defendant  then  seized 
the  goods,  and  Le  Mert  brought  a  second  replevin,  claiming  that  the 
effect  of  the  judgment  in  the  first  cause  was  to  vest  him  with  an  abso- 
lute title  to  the  goods,  that  the  bond  which  he  had  given  stood  in  place 
of  the  goods,  and  that  no  evidence  to  impeach  his  title  or  establish  title 
in  defendant  having  its  inception  anterior  to  the  first  replevin,  could 
be  received;  but  the  court  held  that  the  bond  takes  the  place  of  the 
defendant's  interest  in  the  goods  to  the  extent  of  the  interest  claimed  by 
the  plaintiff,  and  no  further,  Lugenbeal  v.  Le  Mert,  42  O.  St.  1.  Judg- 
ment for  defendant,  even  upon  trial  of  the  merits,  does  not  necessarily 
decide  that  he  has  the  title;  for  he  may  succeed  simply  on  a  plea  of 
non  detinet;  or  he  may  have  a  special  property,  and  be  entitled  to  the 
possession,  while  the  plaintiff  is  the  general  owner,  Freeman  v.  United 
States  Co.,  43  Misc.  364,  87  N.  Y.  Sup.  493.  The  presumption  is  that  the 
title  was  not  in  issue.  Consolidated  Co.  v.  Bronson,  2  Ind.  Ap.  1,  28  N.  E. 
155. 

Entry  and  Authentication. — Where  a  third  party  interpleads,  and  the 
issues  between  plaintiff  and  defendant  are  tried  first  and  separately, 
judgment  should  not  be  entered  upon  the  verdict  upon  these  issues, 
until    the    claim    of    the    inter-pleader    is    adjudicated,    Winchester    v. 


THE  VERDICT  AND  JUDGMENT.  667 

Bryant,  65  Ark.  116.  44  S.  W.  1124.  A  judgment  entered  by  the  clerk 
in  vacation  without  an  order  of  the  court  authorizing  it  or  approving  it, 
is  void.  Balm  r.  Nunn.  63  la.  641,  19  N.  \V.  SIO. 

There  can  be  no  judgment  at  all  until  entered  in  the  proper  record. 
It  cannot  exist  in  the  memory  of  the  officers  of  the  court,  or  in  any 
mere  memorandum  entered  in  the  books  not  intended  to  preserve  tlie 
record.  Id.  On  appeal  the  record  must  be  presumed  to  accord  with  the 
truth,  Palmer  r.  Emory.  91  Ills.  Ap.  207. 

But  if  in  fact  an  alteration  of  the  record  has  been  made  in  varation. 
and  without  any  order  of  the  court,  it  is  a  mere  forgery,  and  equity  may 
grant  relief,  Babcock  r.  McCament.  53  Ills.  214. 

Ofl'er  of  Compromise. — An  offer  of  judgment  under  the  code  provision, 
which  is  refused,  is  to  be  put  out  of  the  case  until  the  final  determina- 
tion, when  it  must  be  considered  in  adjusting  the  liability  for  costs; 
a  referee  is  bound  to  take  notice  of  such  offer  among  the  files  of  the 
court,  bearing  the  plaintiff's  acknowledgment  of  a  copy,  Bourda  v. 
Jones,  110  Wis.  52,  85  N.  W.  671. 

An  assigjimetit  of  a  judgment  for  the  plaintiff  in  replevin  carries 
with  it,  as  an  incident,  the  forthcoming  bond  given  by  the  defendant 
and  an  action  upon  such  bond  cannot  thereafter  be  prosecuted  by  the 
original  obligee.     Odell  v.  Petty,  S.  D.  104  N.  W.  249. 

Enforcement  of  the  Judgment. — The  judgment  in  replevin  is  enforced 
by  execution,  and  not  by  an  attachment  for  contempt,  Hammond  v. 
Morgan.  101  N.  Y.  179,  4  N.  E.  328.  Where  the  judgment  is  for  return 
merely,  it  is  unavailing  if  the  goods  are  not  found,  Id.  The  execution, 
when  the  defendant  prevails,  may  require  the  sheriff  to  take  the  goods 
from  the  plaintiff's  possession  and  deliver  them  to  defendant,  Knelling 
V.  August  Gast  Co..  103  Mo.  Ap.  9S,  77  S.  W.  474.  And  the  plaintiff  has 
no  election  to  retain  the  goods  to  which  he  has  no  title,  by  paying  for 
them.  Id.  The  plaintiff,  suffering  judgment  for  return,  must  tender 
the  identical  goods  taken,  to  the  defendant  in  person,  before  execution 
Issues;  after  execution  issues  he  must  treat  with  the  sheriff,  Irvin  i'. 
Smith,  C6  Wis.  113.  27  N.  W.  35.  28  N.  W.  351.  The  sheriffs  return  upon 
the  execution  that  the  goods  cannot  be  found.  Is  not  open  to  contradic- 
tion upon  a  motion  to  rr-quire  defendant  to  accept  the  goodH,  or  speci- 
fied goods  of  the  same  character,  in  satisfaction  of  the  judgment.  Id. 
But  it  Is  not  determined  that  the  return  of  the  sheriff  nuiy  not  be 
amended  In  a  proper  proceeding.  S.  C.  28  N.  W.  351. 

Earh  party  prevailing  in  part. — The  code  provision  that  judgment 
may  be  given  for  or  against  any  one  or  more  of  several  plalntlffH.  ap- 
plies to  this  action.  Where  several  mortgagees  of  the  same  goodM  Join 
in  replevin,  judgment  must  be  given  agaluKt  those  plaint tfTB  whoHe 
mortgages  are  adjudged  Invalid,  Jones  i'.  I.oree.  37  Net).  816,  56  N.  W. 
390.  Judgment  may  be  given  for  any  one  of  Beveral  plalntlffH.  al- 
though they  asHcrt  a  joint  own«THhlp.  HumMton  r.  Browning.  IM  Ind. 
242.  Ea<h  party  may  have  judgtnenl  as  to  part  of  the  goodH.  Wright  v. 
Funck.  94  Pa.  HI.  26;  anil  •■ach  njay  recover  i)atiiag«  h  and  <-()Kt«.  Knowb-u 
V     |>j<.r><.     '    H'xiwt      17k      One    (IctciKlaiit    iiiav    bi-    liable    for   all    of   the 


668  THE  LAW  OF  REPLEVIN. 

goods  demanded,  and  the  other  for  part  only,  Wall  v.  Demitkiewlcz, 
9  Ap.  D.  C.  100.  Where  there  are  two  or  more  defendants,  each  may- 
recover  a  portion  of  the  goods,  Pilger  v.  Marder,  55  Neb.  113,  75  N.  AV. 
559.  Where  each  party  prevails  as  to  a  part,  each  recovers  costs;  the 
judgments  in  such  case  are  distinct,  an  appeal  by  one  party  does  not 
re-open  the  matter  as  to  what  is  adjudged  in  his  favor,  Vi'nal  v.  Spof- 
ford,  139  Mass.  126,  29  N.  E.  288.  The  recovery  must  be  for  distinct 
and  separate  articles  and  not  undivided  interests,  Phipps  v.  Taylor,  15 
Ore.  484,  16  Pac.  171.  If  the  plaintiff  fails  as  to  a  portion  of  the  goods, 
defendant  is  entitled  to  a  judgment,  for  the  return;  but  he  must  assume 
this  position  and  demand  the  judgment  in  the  trial  court;  he  will  not 
be  heard  to  make  his  contention  first  upon  appeal,  Beatty  v.  Clarkson, 
110  Mo.  Ap.  1.  83  S.  W.  1033. 

Replevin  for  nine  head  of  cattle;  as  to  one  animal  the  defendant  was 
declared  not  guilty;  as  to  the  other  eight,  the  property  was  found  in 
the  plaintiff,  and  the  value  was  found;  the  judgment  disposed  of 
them  all,  but  the  findings  gave  the  number  of  cattle  taken  and  detained 
by  the  defendant  as  six.  This  clerical  error  is  not  injurious  to  the 
defendant  and  not  sufficient  to  reverse  the  judgment.  Olson  v.  Pea- 
body,  121  Wis.  675,  99  N.  W.  458. 

Presumptions. — Where  the  judgment  is  for  the  value  absolutely,  it 
will  be  presumed  upon  appeal,  the  contrary  not  appearing,  that  it  was 
ascertained  in  the  trial  court  that  return  could  not  be  had,  Caruthcrs 
V.  Hensley,  90  Calif.  559,  27  Pac.  411,  Boley  v.  Griswold,  20  Wall.  486, 
22  L.  Ed.  375.  Where  the  judgment  is  for  damages,  only  the  amount 
named  will  be  presumed  to  be  the  value  of  the  goods;  it  will  also  be  pre- 
sumed that  plaintiff  exercised  his  statutory  right  to  take  the  value  in- 
stead of  the  goods,  McGriff  v.  Reid,  37  Fla.  51,  19  So.  339.  Generally,  the 
judgment  will  be  presumed  to  be  correct  unless  the  record  shows  error. 
Lane  v.  Kohn,  79  Ills.  Ap.  396.  The  presumption  is  that  the  title 
was  not  in  Issue,  Consolidated  Co.  v.  Bronson,  2  Ind.  An-  1.  28  N.  E. 
155. 

Eqxiitable .Relief. — It  is  sometimes  said  that  equitable  issues  cannot 
be  injected  into  an  action  of  replevin,  Hennessey  v.  Barnett,  12  Colo. 
Ap.  254,  55  Pac.  197;  and  that  in  such  action  the  court  will  not  recog- 
nize an  equity,  but  give  an  absolute  judgment  in  favor  of  the  one  hav- 
ing the  legal  right  and  the  right  of  possession.  Van  Gorder  v.  Smith, 
99  Ind.  404,  and  that  equities  of  a  purchaser  in  a  conditional  sale, 
and  who  has  made  default  in  the  conditions  of  the  agreement,  cannot 
be  asserted  in  such  action.  Wall  v.  Demitkiewicz.  9  Ap.  D.  C.  109, 
Oskamp  v.  Crites,  37  Neb.  837,  56  N.  W.  394.  In  Penton  v.  Hansen,  13 
Okla.  450,  73  Pac.  843,  the  plaintiff  had  leased  to  defendant  a  number 
of  cows  to  be  kept  for  three  years.  Before  one  year  elapsed  the  de- 
fendant brought  an  action  against  plaintiff  for  the  agistment  of  the 
cattle,  obtained  judgment  upon  constructive  service,  and  caused  one 
of  the  animals  to  be  sold  upon  execution,  becoming  the  purchaser. 
It  was  held  the  plaintiff  could  not  replevy  the  animal,  because  the 
contract  was  still  in  force;  and  because,  the  court  say,  replevin  is  not 


THE  VERDICT  AND  JUDGMENT.  669 

the  proper  action  by  whiL-h  to  cancel  a  contract  or  modify  or  correct  it, 
/(/.  This  judgment  seems  not  well  meditated.  The  defendant  had  re- 
pudiated his  contract,  and  it  would  seem  that  the  plaintiff  was  no  longer 
bound. 

In  those  states  in  which  what  is  called  the  Reformed  Procedure  pre- 
vails, and  where,  by  the  code,  it  is  generally  provided  that  "  the  de- 
fendant may  set  forth  by  answer  as  many  defenses  and  counter-claims 
as  he  may  have,  whether  the  subject-matters  of  such  defense  be  such  as 
was  heretofore  denominated  legal  or  equitable  or  both,"  no  controlling 
reason  appears  why  this  provision  should  not  apply  to  the  action  of 
replevin  as  well  as  to  other  actions;  and  this  seems  to  be  the  view  of 
many  respectable  courts.  Thus  in  National  Bank  of  Deposit  r.  Rogers, 
IGG  N.  Y.  380,  59  N.  E.  922.  it  was  held  that  although  it  appears  that 
plaintiff  has  neither  the  legal  title  nor  the  right  to  immediate  posses- 
sion, if  he  has  a  right  in  equity  to  enforce  a  lien  upon  the  goods  and 
recover  possession,  replevin  may  be  transformed  into  a  suit  in  equity, 
and  relief  given  accordingly.  In  Arkansas  it  is  held  that  where  the 
defendant  asserts  title  to  equitable  relief  the  cause  may  be  transferred 
to  the  equity  side  of  the  court,  and  affirmative  equitable  relief  granted. 
Rogers  v.  Kerr,  42  Ark.  100.  In  National  Bank  of  Deposit  r.  Rogers, 
supra,  Sardy  &  Company  had  borrowed  of  the  bank  moneys  with  which 
to  pay  duties  on  certain  merchandise,  and  executed  their  note  for  the 
amount  secured  by  a  pledge  or  an  agreement  to  pledge,  the  same 
goods.  The  bank  entrusted  the  goods  to  Sardy  &  Company  to  sell  for 
its  account.  They  paid  the  duties  with  the  moneys  so  borrowed,  and 
obtaining  possession  thereof  transferred  them  to  Rogers  to  secure  an 
antecedent  debt;  it  was  held  that  the  duty  of  Sardy  &  Company  was 
to  hold  the  goods  as  if  received  from  the  bank;  that  the  effect  of  the 
transaction  was  to  treat  as  done  what  might  have  been  done;  that  it 
was  competent  for  the  parties  to  deal  in  this  manner,  and  that  equity 
would  enforce  the  trust  even  as  against  Rogers.  A  bill  in  equity 
averred  that  the  goods  in  question  had  been  purchased  and  paid  for  by 
plaintiff,  and  that  the  title  had  passed  to  plaintiff.  Held  it  was  a 
case  for  replevin  and  not  for  a  bill  in  equity;  but  the  <ourt  said  that 
in  the  course  of  the  action  in  replevin  a  case  for  equitable  Interposi- 
tion might  arise,  Sultan  of  the  Ottoman  Empire  v.  Providence  Co.,  23 
Fed.  572.  A  debtor  obtained  Indulgence,  agreeing  to  execute  a  chattel 
mortgage  of  all  crops  to  be  grown  during  a  term  of  years  upon  certain 
land  ofcupled  by  him,  describing  it  minutely,  as  to  the  Improvementa, 
the  number  of  afres.  and  tlio  crops  growing  tliereon.  Tlie  creditor 
relying  upon  his  KlatenicntH,  and  tlie  description  given,  rxtentleil  the 
indulgence,  accepting  the  new  security;  l)ut  the  deljtor  <leceltf»lly  gave 
a  falHO  deHcrlptlon  by  government  numbers,  an<l  thlH  uils-deHcrlptlon 
and  variance  was  H<-t  up  In  <lefenHe  to  an  action  for  tlie  crop.  Held 
that  the  chattel  mortgage  nhould  be  reformed  In  tln>  replevin  h»i11  and 
made  to  apply  to  the  landH  occupied  by  defenilant.  and  jiidKntent  for 
(lefendant  wbh  rcverHod,  M<Cormlck  Co.  v.  Woulph,  11  8.  I).  252.  76  N. 
W.  939.     A  cf-rtlflcato  of  corporate  stock  wuh  replevied  on  an  utTlduvil 


670  THE  LAW  OF  REPLEVIN. 

stating  its  value  at  ten  dollars;  it  was  in  fact  worth  five  thousand 
dollars.  In  view  of  this  reckless  and  extravagant  under-valuation,  an 
injunction  was  awarded  to  restrain  the  plaintiff  from  selling,  transfer- 
ring or  disposing  of  the  certificate,  Barth  v.  Union  Bank,  67  111.  Ap.  131. 
H^nry  Gamble  brought  replevin  against  Ross  for  a  quantity  of  lumber; 
Patrick  M.  Gamble  and  Archibald  Lindsay  became  sureties  on  the  bond; 
the  lumber  was  sold  pending  replevin  and  the  proceeds  deposited  in  the 
bank,  at  first  to  the  credit  of  Lindsay  &  Gamble  in  their  partnership 
account,  and  later  to  the  credit  of  "  Henry  Gamble,  Replevin  Account," 
as  security  to  the  sureties  in  the  bond.  The  defendants  prevailed  and 
obtained  judgment  for  the  value  of  the  lumber;  execution  on  this  judg- 
ment was  returned  unsatisfied.  The  defendants  then  took  judgment 
against  Lindsay,  Patrick  M.  Gamble  being  deceased  in  the  meantime, 
upon  the  bond,  and  petitioned  to  have  the  fund  in  the  bank  applied  to 
the  satisfaction  of  their  judgment.  Held,  the  fund  being  identified  as 
the  proceeds  of  plaintiff's  goods,  they  were  entitled  to  pursue  it;  that 
Lindsay  &  Gamble  having  received  the  money  merely  for  security 
against  liability  to  defendant,  defendant  as  the  principal  creditor  was 
entitled  to  be  subrogated  to  their  position,  and  that  the  fund  with  all 
its  accretions  should  be  paid  to  them,  Ross  v.  Morse,  Mich.  88  N.  W. 
881. 

Where  the  goods  have  been  sold  and  the  money  brought  into  court, 
it  may  be  divided  according  to  the  interests  of  the  parties,  Halpin  v. 
Stone,  78  Wis.  183,  47  N.  W.  177.  In  Coombe  v.  Sanr.on,  1  D.  &  R.  201. 
An  action  of  trover,  equitable  powers  were  assumed.  Defendant  had 
possession  of  an  estate  belonging  to  the  plaintiff,  as  well  as  the  title 
deeds.  Plaintiff  recovered  the  lands  in  ejectment,  and  in  trover  for 
the  title  papers  obtained  judgment  for  £2500.  Defendant  tendered  the 
deeds  in  satisfaction  of  the  judgment  in  trover,  and  on  motion  plaintiff 
was  required  to  enter  satisfaction  of  this  judgment,  upon  delivery  of 
the  deeds  under  oath,  and  satisfaction  of  plaintiff's  attorneys'  bill, 
Hyland  v.  Bohn  Co.,  92  Wis.  157,  65  N.  W.  170,  is  strikingly  like  the 
last  case.  On  a  conditional  sale  promissory  notes  were  executed  by 
the  purchasers,  evidencing  the  additional  installments  of  the  purchase 
money.  Default  having  been  made  the  vendor  replevied  the  goods; 
the  court  by  its  judgment  required  the  surrender  and  deposit  in  court 
of  the  out-standing  notes.  A  statute  provided  that  "  where  the  party 
injured  ....  has  brought  an  action  by  ordinary  proceedings,  he 
may  in  the  same  cause  have  an  injunction  against  the  repetition  or 
continuance  of  such  injury."  Defendant  in  replevin  answered,  claiming 
some  of  the  goods  as  exempt,  and  others  as  not  included  in  the  chattel 
mortgage  under  which  plaintiff  claimed,  and  as  gifts  having  a  special 
value  to  him,  and  others  as  the  property  of  a  third  person  in  his  hands 
as  a  bailee,  and  prayed  return;  held,  that  the  answer  was  in  the  nature 
of  an  action,  and  that  defendant  was  entitled  to  an  injunction  to  restrain 
the  sale  of  these  articles  until  final  judgment  in  the  cause,  Brody  v. 
Chittenden,  106  la.  340,  70  N.  W.  740.  A  defendant  should  interpose 
all  defenses,  legal  or  equitable;  an  issue  of  purely  equitable  character 


THE  VERDICT  AND  JUDGMENT.  C7T 

-will  be  determined  in  chancery.  American  Co.  r.  Futrall,  73  Ark.  4C4.  S4 
S.  W.  505. 

Plaintiff  sold  machinery  to  Ebersole  upon  credit,  retaining  the  title: 
Ebersole  sold  the  same  machinery  to  defendant.  Default  was  made  in 
the  price  agreed  to  be  paid  to  the  plaintiff,  and  replevin  institutol. 
Defendant  was  permitted  to  plead  a  purchase  from  Ebersole  without 
notice  of  plaintiffs  right,  that  no  clause  retaining  the  title  or  limiting 
the  title  was  inserted  in  his  agreement  with  Ebersole,  or  if  so,  without 
defendant's  knowledge  and  by  fraud  and  misrepresentation,  and  to 
make  Ebersole  a  party,  and  pray  reformation  of  the  contract  with 
him.  The  other  issues  in  the  cause  were  postponed  until  the  determina- 
tion of  the  equitable  issue,  Bounot  Co.  v.  Newman,  109  la.  580,  80  N.  W. 
655.  In  Bain  v.  Trixler,  24  Ind.  Ap.  246,  56  N.  E.  690,  the  plaintiff 
bought  of  the  defendant  a  laundry  plant,  defendant  at  the  time  ex- 
hibiting as  part  of  it  an  ironer  known  as  the  "  Nelson."  When  the 
bill  of  sale  was  prepared,  defendant  knowing  that  plaintiff  was  ignorant 
of  the  name  of  the  ironer  purchased,  inserted  a  different  one,  which 
plaintiff,  when  the  articles  were  shipped  to  him,  refused  to  receive.  It 
was  held  that  plaintiff  might  recover  the  ironer  actually  purchased 
without  reformation  of  the  bill  of  sale.  It  seems  that  the  court,  with- 
out professing  to  do  so,  was  exercising  equitable  jurisdiction,  reforming 
the  contract  and  enforcing  it  in  the  same  action.  In  Zeisler  v.  Bingman, 
9  Kans.  Ap.  447,  60  Pac.  657.  the  plaintiff  was  tenant  of  A.  and  sub-let 
a  portion  of  the  lands  to  B;  B  at  the  instance  of  the  plaintiff  undertook 
to  secure  a  renewal  of  the  plaintiff's  lease,  but  in  violation  of  his  duty 
took  a  new  lease  from  A  to  himself;  it  was  held  that  notwithstanding 
this  he  remained  the  tenant  of  the  plaintiff  and  the  plaintiff  was  per- 
mitted to  recover  his  share  of  the  crops  in  replevin. 

Here  again,  as  it  seems,  the  court  was  exercising  equitable  power 
and  applying  an  equitable  remedy.  The  legal  title  to  the  leasehold 
was  clearly  vested  in  the  defendant;  yet  upon  the  equitable  ground  that 
one  acting  as  the  agent  of  another  shall  not  avail  himself  of  his  agency 
to  his  own  profit,  the  court  converted  the  defendant  into  a  trustee  for 
the  plaintiff,  and  by  its  judgment  executed  the  trust.  Where  the  action 
was  for  recovery  of  writings  of  value,  judgment  for  the  possession  was 
va<ated  with  directions  to  the  court  below  to  hear  evidence  if  neccs'-ary 
and  try  the  case  as  an  equitable  a<  tion,  Hammond  r-.  Morgan,  loi  \.  Y. 
179,  4  N.  E.  328.  In  Mohr  r.  I.angan.  162  Mo.  474.  63  S.  W.  409.  It  was 
held  that  where  a  cross  reph'vin  is  brought,  the  defendant  in  the  snond 
action  may  plead  the  former  action,  untler  the  writ  in  whiih  he  holds 
thf  goods,  and  cause  the  defendant  in  that  suit  to  be  brought  infotho 
new  cause,  and  so  determine  all  rights  upon  one  recoril.  In  other  cnsoK 
it  is  said  that  the  judgment  should  adjust  all  the  fquitjeg  of  the  parties. 
MuryBvlile  Bank  r.  Snyder.  85  Mo.  Ap.  83.  Campbell  i-.  Qulnlon,  J  KauH. 
Ap.  317,  45  Pac.  914,  Gentry  i.  Tempktou.  47  Mo.  Ap.  55. 


67; 


THE  LAW  OF  REPLEVIN. 


CHAPTER   XXV. 


MISCELLANEOUS. 


Section. 

Contesting  creditors  cannot  in- 
voke the  aid  of  the  insolvent 
law  against  eacli  other  .        .  788 

Nor  set  up  forfeiture  under 
usury  laws       ....  789 

Right  to  begin  and  conclude     .  790 

Trial  upon  the  facts  existing 
wlien  the  suit  began      .         .  791 

Date  of  writ  not  conclusive  as 
to  conitnencement  of  suit     .  792 

All  matters  in  dispute  .should 
be  settled  in  the  replevin  suit  793 


Section. 
Defense  by  bailee        .        .        .  794 
Effect  of  a  submission  to  arbi- 
tration       795 

Plea  in  abatement,  another  suit 

pending 796 

Tlie  same,  to  theaflSdavit  .  .  797 
Limitations  ....  798 
Amendments  ....  799 
Amendment  of  aflBdavit  .  .  800 
Death  of  party  to  the  suit.        .  801 


§  788.  Contesting  creditors  cannot  invoke  the  aid  of  the 
insolvent  laws  against  each  other.  In  replevin  by  an  at- 
taching creditor,  from  one  who  claims  under  purchase  from  the 
debtor,  the  attaching  creditor  cannot  invoke  the  aid  of  the  msol- 
vent  laws  of  the  State  to  set  aside  a  sale  or  transfer  to  the  other.' 
The  insolvent  laws  are  only  for  the  benefit  of  those  who  claim 
under  them.  The  assignee  may  have  recourse  to  such  law  in 
some  cases  to  defeat  a  sale  to  a  creditor,  but  the  rights  of  contest- 
ing creditors,  who  do  not  claim  under  the  assignee,  are  not  af- 
fected by  the  insolvent  laws. 

§  789.  Nor  set  up  a  forfeiture  under  usury  laws.  In  a 
suit  where  the  plaintiff  claimed  from  an  assignee  in  insolvency, 
and  the  defendant  claimed  under  a  mortgage  made  by  the  insol- 
vent, the  mortgage  debt  was  not  paid,  but  the  plaintiff  offered  to 
show  that  it  was  for  usury  ;  that  if  statutory  penalty  of  threefold 
the  usurious  interest  was  deducted  from  it,  the  debt  would  be 


1  Gardner  r.  Lane,  9  Allen,  (Mass.)  497. 


THE  VERDICT  AND  JUDGMENT.  673 

canceled.  He  therefore  claimed  the  right  to  regard  the  mortgage 
as  paid.  Held^  that  the  forfeiture  for  usury  must  be  judicially 
determined  upon  an  issue  on  that  question  before  it  could  be  ap- 
plied to  reduce  the  debt  so  as  to  atfect  the  lender's  title  to  his 
security,  and  judgment  was  for  the  defendant'^  The  right  to 
deduct  the  forfeiture  in  a  suit  to  enforce  the  contract  is  by  no 
means  payment  of  the  debt.' 

§  790  Right  to  begin  and  conclude.  While  the  defendant 
is  an  actor,  and  so  far  a  plaintiff,  it  does  not  follow  that  he  has  the 
right  to  begin  and  (\')nelude.  In  determining  whieh  party  has  the 
right,  the  court  should  consider,  not  so  much  the  form  of  the 
issue  as  the  substance  and  effect  of  it.  The  question  is,  on  whom 
is  the  burden  of  proving  the  issue?  The  obligation  rests  upon 
him  to  make  it  out  by  a  preponderance  of  proof ;  he  therefore  has 
the  right  to  begin  and  conclude.*  Where  the  defendant  pleads 
property  in  himself,  with  a  traverse  of  the  plaintifif's  right.s  there 
is  still  such  a  burden  of  proof  upon  the  plaintiff  as  to  entitle  him 
to  begin  and  conclude.*  But  when  the  defendant  pleads  property 
without  traverse,  he  assumes  the  burden  of  proving  the  property 
to  be  his.  If  no  proof  be  offered,  the  judgment  upon  such  plea 
would  be  for  the  plaintiff.  In  such  case  the  defendant  may  begin. 
Such  plea  is  regarded  as  admitting  the  plaintiff's  claim,  and  as- 
serting a  sui)erior  right  in  the  defendant. 

§  791.  Trial  upon  the  facts  existing  when  the  suit  began. 
According  to  the  general  rule,  the  suit  is  tried  on  the  state  of  facts 
as  they  existed  at  the  commencement  of  the  suit.®  This  rule 
must  prevail,  unless  there  be  some  peculiar  reasons  existing  to 
the  contrary.'  Where  the  defendant  justified  as  an  officer,  under 
an  attichment,  evidence  to  show  tliat  it  was  dis.solved  after  the 
property  was  replevied  was  immaterial,  as  the  rights  of  the  parties 
depenil  upon  the  facts  existing  at  the  time  the  suit  was  begun. 


»  McNeal  v.  Leonunl,  1  .Vllcn,  399.     Sec  sjune  case,  3  Allen.  208. 
«  Ih. 

«  Bills  V.  Vose.  7  Foster,  (N.  H.)  215;  Belknup  r. Wiiidcll,  1  F^jsUt.  (21  N. 
H.)  181. 

♦  MurHli  x\  Tier.  J  H.ivvlc,  (Pii.)  273. 

•  Currier  f.  Ford.  2«  III.  492;  IJcidcn  v.  IjiinR,  8  Mich.  500;  Ciiss*.]!  r. 
Western,  etc..  Co..  12  lowii,  47;  Ilick.-yr.  IIin«<iiilc.  12  Mich,  99  ;  r,.i<.iiiis  »•. 
Youle.  1  Minn.  175  ;  Clark  v.  West.  23  Mich.  242. 

"*  Cary  v.  Hewitt.  26  Mich.  228. 
'  MrCraw  v.  Welch.  2  Col.  287. 
43 


674  THE  LAW  OF  REPLEVIN. 

So  in  suit  on  bond,  when  the  issue  in  replevin  was  title  to  the 
property,  and  that  was  found  for  the  defendant,  he  was  not  al- 
lowed, in  the  suit  upon  the  bond,  to  set  up  a  subsequently  ac- 
quired title  as  a  defense.®  But  this  rule  will  not  prevent  the  con- 
sideration of  damages  to  the  time  of  the  judgment,  as  interest  is 
computed  on  a  note  ;  neither  will  the  court  refuse  to  consider  the 
rights  of  the  defendant  to  a  return  at  the  time  return  is  a.sked. 

«  Carr  v.  Ellis,  37  Ind.  467. 

Note  XXXV.  Ti7ne  to  which  the  inquiry  is  directed. — The  action  is 
to  be  tried  upon  the  state  of  facts  existing  at  the  time  of  its  institution, 
Shreck  v.  Gilbert,  52  Neb.  813,  73  N.  W.  276,  Tackaberry  v.  Gilmore,  57 
Neb.  450,  78  N.  W.  32.  The  question  is  who  was  entitled  to  possession 
at  the  institution  of  the  suit,  Hilman  v.  Brigham,  117  la.  70,  90  N.  W. 
491,  Matthews  v.  Granger,  71  Ills.  Ap.  467,  Ator  v.  Rix,  21  Ills.  Ap.  309, 
Fischer  v.  Burchall,  27  Neb.  245,  42  N.  W.  1034,  Wyandotte  Bank  v. 
Simpson,  8  Kans.  Ap.  748,  55  Pac.  347.  The  plaintiff's  right  is  deter- 
mined by  the  conditions  existing  at  the  institution  of  his  suit,  Stern  v. 
Riches,  111  Wis.  589,  87  N.  W.  554.  He  cannot  assert  a  title  acquired 
pending  the  suit,  McKennon  v.  May,  39  Ark.  442.  Plaintiff  demanded 
of  defendant,  an  officer,  certain  chattels  levied  upon  by  him;  the  ground 
of  the  demand  was  the  statutory  exemption;  they  were  in  fact  exempt, 
but  before  the  plaintiff  instituted  his  action  one  to  whom  plaintiff  had 
previously  executed  a  mortgage  of  the  same  goods,  demanded  them; 
held,  that  as  the  mortgagee's  right  was  superior  to  that  of  the  plaintiff 
judgment  must  go  for  the  defendant.  Stern  v.  Riches,  supra. 

Plaintiffs  Case. — Plaintiff  should,  by  his  case  in  chief,  make  a  full 
disclosure  of  his  right;  he  cannot  be  permitted  to  make  out  his  case 
by  testimony  in  rebuttal,  Woolston  v.  Smead,  42  Mich.  54,  3  N.  W.  251. 
Where  the  plaintiff  in  his  opening  shows  the  possession  merely,  ap- 
parently avoiding  any  attempt  to  show  title,  and  the  defendant  con- 
tradicts this  by  proof  of  possession,  during  the  same  time  with  claim 
of  title  in  another,  it  is  error  to  allow  plaintiff  in  rebuttal  to  put  in 
evidence  of  a  purchase  by  himself,  Woolston  v.  Smead,  supra.  If  the 
plaintiff  proves  title  to  the  goods  and  his  right  to  possession,  his  failure 
to  prove  fraud  in  the  purchase  under  which  defendant  claims  is  imma- 
terial. Kocher  v.  Palmetier.  112  la.  84,  83  N.  W.  816.  Whatever  is 
conceded  upon  the  trial  will  be  taken  as  true  upon  an  appeal,  Sieden- 
bach  17.  Riley,  111  N.  Y.  560,  19  N.  E.  275.  The  plaintiff  must  succeed 
on  the  strength  of  his  own  title.  Holler  v.  Colesen,  23  Ills.  Ap.  324, 
Martin  v.  Le  San,  Iowa,  105  N.  W.  996;  Northwall  Co.  v.  Strong,  Neb.,  89 
N.  W.  767;  Ottumwa  Bank  v.  Totten.  Mo.  Ap.,  89  S.  W.  65;  Morgan  v. 
Jackson,  32  Ind.  Ap.  169,  C9  N.  E.  410.  Plaintiff  must  show  a  right  to 
possession.  Bryant  v.  Dyer,  96  Mo.  Ap.  455,  70  S.  W.  516;  Esshom  v. 
Watertown  Co.,  7  S.  D.  74,  63  N.  W.  229;  and  a  wrongful  taking  or  deten- 


THE  VERDICT  AND  JUDGMENT.  675 

tion,  Windsor  r.  Boyce,  1  Houst.  605.  Plaintiff  is  bound  to  prove  his 
case  by  a  preponderance  of  testimony  upon  every  substantial  issue, 
Coghill  V.  Boring,  15  Calif.  213.  The  negative  averment  that  the  goods 
have  not  been  seized  under  process  against  the  plaintiff  need  not  be 
proved  in  the  first  instance,  Knoche  v.  Perry,  90  Mo.  Ap.  483.  If  plain- 
tiff claims  under  a  mortgage  he  must  prove  the  identity  of  the  goods 
claimed  in  the  writ  with  the  goods  named  in  the  mortgage.  First  Na- 
tional Bank  r.  Wood.  124  Mo.  72,  27  S.  W.  554.  The  authority  of  the 
officers  of  a  corporation  executing  a  chattel  mortgage,  regular  upon  its 
face  and  under  the  corporate  seal,  need  not  be  proven  unless  denied, 
Sargent  v.  Chapman,  12  Colo.  Ap.  259,  56  Pac.  194. 

T'orioHce. — If  the  plaintiff  charge  the  conversion  of  the  goods  he  can 
not  prevail  upon  proof  that  the  defendant  was  lawfully  in  possession, 
with  authority  to  sell  for  a  particular  purpose,  and  mis-applied  the  pro- 
ceeds; the  judgment  must  follow  the  allegations,  Bixel  v.  Bixel,  107  Ind. 
535,  8  N.  E.  614.  If  the  defendant  aver  title  in  a  third  person  named, 
he  will  not  be  permitted  to  prove  title  in  another  person,  Dobbins  v. 
Hanchett,  20  Ills.  Ap.  396.  Objection  for  variance  between  the  proofs 
and  the  allegations  must  be  taken  at  the  trial,  First  National  Bank  v. 
Parkhurst,  54  Kans.  155,  37  Pac.  1001. 

Questions  for  the  Court  or  Jury. — Whether  the  transaction  relied 
upon  was  a  sale  or  bailment,  is  for  the  jury,  Gilbert  v.  Forest  City  Co., 
72  Ills.  Ap.  186;  and  so  the  question  whether  the  demand  was  a  reason- 
able demand  under  all  the  circumstances,  Kane  v.  Reid,  33  Misc.  802, 
68  N.  Y.  Sup.  623;  and  whether  the  delivery  of  part  of  a  mass  of  prop- 
erty, e.  g.,  a  saw-mill  outfit  and  animals,  was  a  delivery  of  all,  depends 
upon  the  intention  of  the  parties,  and  is  for  the  jury,  Peeples  v.  War- 
ren, 51  S.  C.  560,  29  S.  E.  659;  and  whether  there  is  a  non-joinder  of  a 
tenant  in  common  with  the  plaintiff  is  a  question  for  the  jury.  Van 
Baalen  v.  Dean,  27  Mich.  104.  The  plaintiffs  agreed  to  furnish  to  the 
Saginaw  Company  "  all  necessary  supplies,  such  as  provisions,  meats, 
hay,  feed,  and  all  other  necessaries  required  to  carry  on  the  logging 
business,  except  horses,  mules  or  cattle."  An  engine  and  boiler  were 
furnished.  Held,  that  it  was  proper  to  submit  to  the  jury  the  question 
whether  It  was  furnished  under  the  agreement  or  as  a  mere  loan, 
Carstens  v.  Earles,  26  Wash.  676,  76  Pac.  404.  The  question  under 
which  of  two  contracts  goods  are  delivered,  Nebeker  v.  Harvey,  21  Utah, 
363,  60  Pac.  1029.  Where  there  are  disputes  as  to  the  intention  of  a 
written  agreement,  and  questions  of  rescission  thereof  by  disputed  oral 
agreements,  the  effect  of  the  oral  contracts  Is  for  the  jury.  Id.,  citing 
Warner  v.  Mlltcnberger,  21  Md.  264.  83  Am.  Dec.  573.  Where  the  ques- 
tion, whether  a  sale  was  for  cash  or  upon  credit  depends  upon  the  con- 
struction of  a  writing.  It  is  for  the  court.  Smith  Co.  v.  Holden,  73  Vt. 
396,  51  All.  2.  A  verdict  of  not  guilty  merely,  leaves  the  right  of  pos- 
seBslon  at  large;  and  where  the  statute  provides  that  upon  abatement, 
dlsmlHHal,  nonHult,  di'fault.  or  trial  of  an  action  of  replevin,  the  ((lurt 
Bhall  "make  Huch  order  for  return  or  rcHtoratlon  of  the  property  as  Ih 
JuHt,  and  take  HUch  inquest  of  damages  In  the  premiaeH  as  the  rights 


676  THE  LAW  OF  REPLEVIN. 

of  the  parties  require,  and  render  judgment  accordingly,"  the  court  may 
properly  submit  the  question  of  return  to  the  jury.  Id.  Where 
the  question  depends  upon  the  intent  with  which  a  mortgage  was  ac- 
cepted, the  question  is  for  the  jury,  Dawson  v.  Thigpen,  137  N.  C.  462, 
49  S.  E.  959.  Where  an  officer,  defendant,  justifies  under  process,  the 
jurisdiction  of  the  court  from  which  it  emanates,  and  the  validity  of 
the  judgment  and  process,  are  for  the  court,  Gallick  v.  Bordeaux,  31 
Mont.  328,  78  Pac.  583. 

Instructio7is. — The  court  should  instruct  the  jury  as  to  whom  the 
property  has  been  delivered  to,  and  in  whose  possession  it  is,  and  as  to 
the  mode  of  estimating  damages.  Search  v.  Miller,  9  Neb.  26,  1  N.  W. 
975.  An  instruction  which  leaves  it  to  the  jury  to  decide  what  Is  a 
wrongful  taking,  is  error,  Matthews  r.  Granger,  71  Ills.  Ap.  467.  An 
instruction  which  requires  the  jury  to  find  that  defendant  was  the 
"  owner  "  at  the  commencement  of  the  action,  when  he  asserts  only  the 
right  of  possession,  is  error,  Meyer  v.  First  National  Bank,  63  Neb.  679, 
88  N.  W.  867.  The  jury  ought  not  to  be  told  that  plaintiff  must  re- 
cover upon  the  strength  of  his  own  title,  and  not  upon  the  weakness  of 
the  defendant's,  though  this  is  the  law,  Bright  v.  Miller,  95  Mo.  Ap.  270, 
68  S.  W.  1061.  An  instruction  that  if  the  defendant  at  the  time  men- 
tioned was  "  in  lawful  possession "  of  the  premises  upon  which  the 
wheat  in  controversy  was  grown,  and  maintained  the  possession,  is  not 
objectionable  as  leaving  unexplained  such  terms  as  "  lawful  possession  " 
and  "  maintained  the  possession,"  Bowen  v.  Roach,  78  Ind.  361.  An  in- 
struction that  the  deceased  in  nis  life-time  was  entitled  to  make  the 
gift  of  the  horse  in  controversy  to  his  wife,  without  any  writing  "  and 
the  same  was  valid  on  his  heirs,  executors  and  legatees,"  is  not  objec- 
tionable as  declaring  the  fact  of  the  gift,  Hopper  v.  Hopper,  84  Mo.  Ap. 
117.  The  instructions  may  properly  call  the  attention  of  the  jury  to 
particular  evidence  material  to  the  issue,  Allamong  v.  Peeples,  75  Mo. 
Ap.  276.  There  is  no  error  in  refusing  to  denounce,  in  the  instructions, 
the  defense  of  usury  as  unconscionable;  or  refusing  to  prescribe  to  the 
jury  any  higher  degree  of  evidence,  as  necessary  to  maintain  this  de- 
fense, than  required  in  other  cases,  Nunn  v.  Bird,  36  Ore.  515,  59  Pac. 
808.  In  Skow  v.  Locke,  Neb.,  91  N.  W.  204,  an  instruction  that  where 
the  testimony  is  conflicting  and  irreconcilable  the  jury  should  "  give 
great  weight  to  the  surrounding  circumstances  in  determining  which 
witness  is  entitled  to  credit,"  was  held  erroneous  as  expressing  the 
opinion  of  the  trial  judge  as  to  the  degree  of  importance  to  be  attached 
to  the  surrounding  circumstances. 

Venue. — In  Connecticut  the  action  of  replevin  is  transitory;  there 
need  be  no  evidence  that  the  goods  were  detained  in  the  state,  Belknap 
Bank  v.  Robinson,  66  Conn.  542,  34  Atl.  495.  In  Wisconsin,  replevin  is 
transitory,  except  where  brought  to  recover  a  distress.  Young  v.  Lego, 
38  Wis.  206.  If,  where  the  action  is  local,  the  writ  is  executed  out  of 
the  county  of  the  venue,  the  plaintiff  will  be  nonsuited,  Williams  v. 
Welch,  5  Wend.  290.  In  Utah,  replevin  lies  only  in  the  county  where 
the  unlawful  taking  or  the  unlawful  detention  occurred;  the  defect  in. 


•     THE  VERDICT  AND  JUDGMENT.  677 

§  792.     Date  of  writ  not  conclusive  as  to  commencement 
of  suit.     The  date  of  the  writ  is  not  necessarily  conclusive  as  to 

the  jurisdiction  cannot  be  waived,  'Woodward  v.  Edmonds,  20  Utah,  118. 
57  Pac.  848.  The  cause  of  action  arises  where  the  goods  are  when  the 
demand  is  made  and  refused;  the  action  may  be  brought  in  that  county; 
the  fact  that  process  is  served  in  a  different  county  is  not  material, 
Nebeker  v.  Harvey,  21  Utah,  363,  60  Pac.  1029.  In  Iowa  the  action  lies 
in  the  county  in  which  any  of  the  goods  are  situated.  Porter  v.  Dalhoff, 
59  la.  459,  13  N.  W.  420.  It  is  not  essential  to  the  jurisdiction  that  any 
of  the  goods  should  be  seized  under  the  writ,  Laughlin  v.  Main,  63  la. 
580,  19  N.  W.  673.  Two  defendants,  one  resident  in  the  county  in  which 
the  suit  was  instituted,  the  other  in  another  county;  the  latter  con- 
tested the  owership  and  the  right  of  possession;  the  discharge  of  the 
first  does  not  entitle  the  other  to  be  dismissed.  Porter  v.  Dalhoff,  supra. 
The  statute  providing  that  certain  actions,  not  including  replevin,  shall 
be  brought  in  the  county  where  the  subject  thereof  is  situate,  or  the 
cause  of  action  arose,  and  that  "  in  all  other  cases  "  the  action  should 
be  commenced  where  the  defendants  or  one  of  them  has  his  usual  place 
of  residence,  replevin  is  properly  brought  in  the  county  of  the  residence 
of  the  defendants,  or  one  of  them,  Hodson  t>.  Warner,  60  Ind.  214. 
Where  immediate  possession  is  not  demanded  there  need  be  no  evidence 
of  detention  in  the  county,  Robinson  v.  Shatzley,  75  Ind.  461.  No 
evidence  need  be  given  that  the  goods  were  in  the  county  at  the  issu- 
ance of  the  writ,  Cox  v.  Albert,  78  Ind.  241.  The  complaint  need  not 
aver  that  the  goods  are  detained  in  the  county  of  the  venue,  Hoke  r. 
Applegate,  92  Ind.  570.  In  Minnesota  the  action  may  be  tried  where 
the  plaintiff  resides,  though  the  taking  was  by  the  sheriff  under  process 
and  in  a  different  county,  Leonard  r.  McGinnis,  34  Minn.  506,  26  N.  W. 
733.  Where  the  statute  required  the  complaint  for  the  possessory 
warrant  to  be  made  to  any  judge  or  justice  of  the  peace  of  the  county 
"  in  which  the  property  in  controversy  "  may  be,  a  complaint  verifying 
the  taking  or  possession  of  the  goods  by  the  defendant  and  that  defend- 
ant was  "  of  M  County."  was  hold  sufficient,  in  view  of  the  fact  that 
the  writ  was  intended  for  the  recovery  of  goods  which  are  hidden,  or 
those  which  are  openly  detained,  that  the  complainant  may  not  bo  able 
to  ascertain  the  exact  whereabouts  of  the  goods,  and  that  personalty  Is 
supposed  to  attend  and  follow  the  person  of  the  owner  or  claimant, 
Claton  V.  Ganey,  C3  Ga.  331.  The  defendant  went  to  an  Inland  In  the 
.Missouri  River,  within  the  limits  of  the  State  of  Missouri,  excavated 
sand,  carried  It  Into  the  State  of  Kansas,  and  converted  It.  I'lninlifr, 
the  owner  of  the  Island,  was  porniittod  to  rocovor  In  KauKUH  tho  value 
of  the  sand;  and  the  court  said  he  ml^ht  have  ninliitaiiiod  replevin, 
McGonlgle  r.  Atrhlson,  33  Kans.  726,  7  Pac.  5.M).  Whore  tho  statute 
requires  the  affidavit  of  tho  party  to  a  petition  for  a  cluiiiKo  of  venue, 
the  affidavit  of  tho  attorney  will  not  suffice,  Cromer  r.  Watson,  59  S.  C. 
488.  38  8.  E.  126. 


678  THE  LAW  OF  REPLEVIN. 

the  time  tho  suit  was  lu'gun.  If  tlic  action  liad  not  acerued  on 
the  day  of  tlie  date  of  the  writ,  hut  did  accrue  before  tlie  date  of 
tlie  service,  and  there  is  no  evidence  of  the  date  wlien  tlie  writ 
was  issued  or  used,  in  any  way,  the  presumption  wouhl  be  that 
the  action  was  brought  after  it  had  accrued.'" 

§  to;].  All  matters  in  dispute  should  be  settled  in  the 
replevin  suit.  Tlic  legal  interests  of  the  ])arties  shoidd,  as  far  as 
possible,  be  determined  in  the  replevin  suit ;  that  should  be  final. 
By  this  is  meant  all  the  legal  rights  of  the  parties  at  an  issue,  or 
which  may  properly  be  determined  in  the  suit  should  be  finally 
settled.  But  where  the  plaintiff  dismisses  the  suit,  and  tlie  court 
awards  a  return,  the  security  may  plead  limited  interest  or  want 
of  title,  in  reply  to  the  suit  upon  the  bond."  Where  the  plaintiff 
claims  jjroperty,  and  the  defendant  claims  a  lien,  as  poundmaster, 
the  jury  should  find  Avhether  the  plaintiff  was  the  owner,  and 
whether  the  })roperty  was  subject  to  this  lien.'^ 

§  794.  Defense  by  bailee.  A  bailee  of  goods,  when  sued, 
ma}'  show  that  his  bailor  did  not  own  them.  He  is  not  bound  to 
retain  possession  at  all  hazards,  and  is  under  no  obligation  to 
resist  an  apparently  good  claim  made  by  another  person,  at  the 
expense  of  a  lawsuit,  "  though  fair  dealing  in  this  respect  would 
require  him  to  notify  the  bailor,  if  practicable,  so  that  he  might 
resist,  if  he  saw  fit.  Tlie  rule  in  ejectment  requires  the  tenant  to 
notify  the  landlord  of  any  suit  to  dispossess  him.  The  same 
reasons  would  a]iply  wdiere  the  bailee  w^as  sued  for  a  chattel  by  a 
stranger.  The  bailor  might  determine  for  himself  whether  to 
yield  to  the  claimant,'  or  contest  his  right;  or  he  might  notify  his 
bailee,  which  would  be  the  preferable  course. 

§  795.  Effect  of  a  submission  to  arbitration.  An  uncondi- 
tional submission  of  the  suit  in  replevin  to  the  award  of  arbitra- 
tion, is  a  discontinuance  of  it.  The  parties  have  agreed  to  resort 
to  another  and  different  forum.  In  such  case  the  liability  of  the 
security  is  at  an  end.  The  bond  was  conditioned  to  secure  the 
due  prosecution  of  the  suit ;  the  prosecution  was  dispensed  with 
by  agreement  of  the  defendant  for  whose  benefit  the  bond  was 

'"Fcderhen  v.  Smith.  3  Allen,   119.     See,  also,   Swift  v.  Crocker,  21  Pick 
241 ;    Seaver  v.  Lincoln,  21  Pick.  267. 
"  Hayden  v.  Anderson,  17  Iowa,  158. 
'2  Warner  v.  Hunt,  30  Wis.  202. 
"  Learned  v.  Bryant,  13  Mass.  224. 


THE  VERDICT  AND  JUDGMENT.  C79 

made."  But  if  the  submission  contains  tlie  agreement  that  a 
judgment  of  court  shall  be  entered  upon  the  award,  such  an  entry 
will  be  equivalent  to  a  judgment  after  trial. '^ 

§  796.  Plea  in  abatement,  another  suit  pending.  Plea  in 
abatement,  setting  up  a  prior  replevin,  which  did  not  allege  any 
affidavit  for  the  issue  of  first  writ,  or  that  the  writ  commanded  the 
sheriff  to  take  this  property,  was  insufficient.'* 

§  797.  The  same  to  the  affidavit.  The  statute  is  that  no 
plea  in  abatement  other  than  to  the  jurisdiction,  or  when  the 
matter  relied  upon  shall  appear  of  record,  shall  be  admitted  unless 
sworn  to.  But  a  plea  in  abatement  to  the  affidavit  which  is  not 
a  part  of  the  record  must  be  sworn  to." 

§  798.  Limitations.  Plea  of  non  cepit  infra  sex  annos  is 
bad  ;  it  should  be  actio  non  accrerit  infra  sex  anrios?^  The  plea 
of  non  cepit  infra  sex  ainios  is  no  answer  to  the  charge  of  wrong- 
ful detention ;  the  defendant  may  not  have  taken  the  beasts;  as 
for  instance,  where  a  colt  was  foaled  while  the  mother  w^as  in  the 
pound,  the  plea  might  lie  true,  but  would  be  no  answer  to  the 
plaintiff's  action.'"  Where  the  goods  in  dispute  are  wrongfully 
taken,  the  statute  of  limitations  begins  to  run  from  the  time  of 
aking  ;  but  where  the  taking  was  rightful,  the  statute  does  not 
begin  to  run  until  demand  and  refusal,  or  until  the  defendant 
shall  have  actuall}'  converted  the  goods,  or  done  some  act  from 
which  the  law  will  imply  a  conversion.  Thus,  when  goods  were 
taken  by  an  officer  on  an  execution  which  was  afterwards  set 
aside  for  irregularity,  which  rendered  it  void,  the  statute  was 
considered  as  beginning  to  run  from  the  time  of  the  taking.-" 
Where  the  suit  was  for  notes  deposited  with  the  defendant,  which 

'♦  R/.'eve  V.  Mitcliell,  15  II'..  2'J7  ;  Peri','o  v.  Grimes.  2  ("ol.  (mO  ;  Perkins  v. 
Rudolph,  m  III.  :i07  :  Smilli  v.  Barsc,  2  Hills,  387  ;  Arclu-r  r.  Hale,  1  Viiig. 
(i:{  K.  C.  L.)  4(i4  ;  Larkiti  v.  U..l)»)ins.  2  Wend.  505  ;  Towns  v.  Wilcox.  13 
Wf-nil.  50:{  ;  Wells  r.  Lane.  15  Wenil.  99  ;  .Moore  r.  Howniaker.  1  K.  V.  L. 
Kep.  Wt'.i  ;  Bowinaker  v.  Moore,  1  Excli.  Kep.  ;J55. 

'•'Thorp  V.  Starr.  17  III.  190;  Canjp  v.  Hoot,  IS  J(.hns.  23;  Green  r. 
Putchin.  13  Wend.  293  ,  Ex  jmrte  Wright,  6  Cow.  399  ;  Yates  v.  Hussell.  17 
.Johns.  4«l  ;  Merritt  v.  Tlionipson,  27  N.  Y.  232  ;  Hill  v.  Passage,  21  Wis. 
39H. 

'•  Ik-'Iden  r.  Uinj,'.  8  Midi.  .501. 

"  Town  V.  Wilson,  H  ,\rk.  105. 

'•  Arun<iel  r.  Trevin.  I  Kehle,  279. 

'•GillK-rt  on  Ueph.vin,  131. 

«  Ilee<l  T'.  .Markle,  3.IohnH.  524. 


680  THE  LAW  OF  REPLEVIN. 

■were  afterwards  (U'm;imled  of  liiiu  iind  delivery  refused,  it  was 
held  that  the  statute  hegan  to  ruu  from  tlie  demand  and  refusal ; 
and  a  suhsecjuent  demand  and  subse(iuent  refusal,  after  the  de- 
fendant had  jiarted  with  the  property,  would  not  take  the  case 
out  of  the  statute;'-'  hut  if  the  defendant  had  liad  the  property 
in  his  hands  at  the  time  of  the  second  demand,  the  statute  would 
undoubtedly  have  commenced  to  run  from  such  second  delivery. 

»'  Kelsey  v.  Giiswold,  G  Barb.  436. 

Note  XXXVL  Limitations. — One  who  has  had  peaceable  possession 
of  an  animal  for  the  period  of  the  statute  of  limitations  may,  upon  the 
title  so  acquired,  recover  the  animal  from  the  former  owner  who,  find- 
ing him  at  large  has  seized  upon  him.  Hicks  v.  Fluit,  21  Ark.  463. 
Peaceable  possession  for  five  years  is  a  sufficient  defense  to  a  posses- 
sory warrant,  Gaillard  v.  Hudson,  81  Ga.  738.  But  possession  of  slaves 
belonging  to  an  infant  by  the  father  of  the  infant  as  his  natural  guar- 
dian, is  not  adverse,  and  however  long  continued  confers  no  right.  Pope 
t'.  Jenkins,  30  Mo.  528.  Mere  retention  of  possession  by  a  landlord,  of 
goods  left  upon  his  premises  by  tenant,  the  landlord  claiming  a  lien 
for  rent,  does  not  set  the  statute  of  limitations  in  motion,  Myar  v.  El 
Paso  Co.,  Tex.  Civ  Ap.,  63  S.  "W.  337.  Nor  does  the  statute  extinguish 
the  lien;  the  goods  cannot  be  taken  from  the  lien  claimant,  without 
satisfaction  of  his  demand.  Id.  The  statute  of  limitations  begins  to 
run  as  against  a  bo7ia  fide  purchaser  from  a  trespasser  or  a  thief,  at  the 
moment  of  his  receiving  the  goods,  Harpending  v.  Meyer,  55  Calif.  555. 
But  in  another  case  it  was  held  that  the  cause  of  action  arises  when 
and  where  demand  was  made  and  the  refusal  occurred,.  Woodward  v. 
Edmunds,  20  Utah,  118,  57  Pac.  848;  Nebeker  v.  Harvey,  21  Utah,  363, 
60  Pac.  1029.  A  gratuitous  bailment  of  chattels  ends  with  the  death 
of  the  bailee;  no  trust  attends  the  goods  in  the  hands  of  his  executor; 
the  widow  who,  upon  the  death  of  her  husband,  succeeds  to  the  pos- 
session of  goods  which  he  holds  as  bailee,  and  retains  them  for  the 
statutory  period,  may  plead  the  limitation  against  the  owner,  Morris  v. 
Lowe,  97  Tenn.  243,  36  S.  W.  1098.  The  action  for  taking  an  insufficient 
bond  matures  when  the  judgment  of  retorno  is  entered.  Love  v.  The 
People,  94  Ills.  Ap.  237.  The  reason  is  that  the  statute  gives  an  action 
only  for  such  damages  as  the  party  "may  sustain"  ;  and  it  cannot  be 
known  until  the  judgment  in  the  replevin  is  entered,  what  damages,  or 
whether  any  damages,  have  been  sustained,  Id.  A  statute  prohibiting 
execution  if  more  than  twelve  months  elapse,  without  execution  issued, 
is  waived  by  an  agreement  of  the  parties  to  give  time  for  the  conver- 
sion and  sale  of  personal  property,  even  though  no  period  to  deliver  is 
fixed,  execution  being  taken  out  immediately  after  the  sale  of  the 
personalty.  First  National  Bank  v.  Gabbard,  21  Ky.  L.  Rep.  1441,  55 
S.  W.  548.  The  statute  of  limitations  does  not  avail  unless  pleaded. 
Smith  V.  Williamson,  1  H.  &  J.  147. 


MISCELLANEOUS.  681 

§  799.  Amendments.  In  replevin,  as  at  present  adminis- 
tered, liberal  amendments  are  allowed  for  the  furtherance  of 
justice  ;  ■•  or  upon  a  variance  between  the  pleadings  and  the  proof, 
the  former  may  be  amended  or  disregarded  upon  the  trial,  if  not 
calculated  to  prejudice  or  surprise  the  opposite  party.-'  Where 
the  avowry  was  for  rent  due  at  the  end  of  the  year,  and  the  proof 
showed  rent  due  half  yearly,  amendment  was  permitted  without 
costs.-*  When  the  plaintiff's  writ  by  mistake  stated  that  the 
defendant  "  has  taken  "  and  detains,  and  the  intention  was  to  sue 
for  the  detention  only,  amendment,  by  striking  out  the  words 
"  has  taken,"  was  permitted."  So  when  the  statute  required 
sufficient  securities,  and  the  writ  contained  instructions  to  the 
sheriff  to  Uxke '■^  surety  ov  sureties,''^  the  striking  out  the  words 
"surety  or  "  was  allowed  on  motion.^*  Where  the  writ  was  ad- 
dressed to  the  sheriff,  but  was  served  by  the  coroner,  upon  a 
motion  to  quash  and  a  cross-motion  to  amend  by  addressing  it  to 
the  coroner,  the  cross-motion  was  allowed." 

§  800.  Amendment  of  affidavit.  The  affidavit  may  be 
amended  in  furtherance  of  justice ;  thi.s,  however,  can  usually  be 
done  only  by  a  new  affidavit,  supplying  what  was  omitted  in  the 
first.**  Where  affidavit  was  signed  by  i)laintifY,  but  no  jurat,  and 
he  filed  affidavit  that  it  was  sworn  to ;  held,  that  the  affidavit 
might  have  been  verified  7iunc  pro  tunc."^  In  an  Indiana  case,  it 
Avas  said  in  a  suit  upon  the  bond  that  the  court  could  revise  and 
correct  the  proceeding  in  the  replevin  suit ;  that  tlu^  iilaintilV  in 
the  suit  upon  the  bond  might  file  supplemental  ])lea<lings  to  con- 
form his  suit  to  the  amendment.^"  This  carries  the  rule  inucli 
further  than  the  current  of  authority  in  other  Stiites  warrants. 
The  plaintiff  may  be  allowed  to  file  an  amended  boiul,"  or  a  Hi- 
davit,"  in  ea.ses  where  the  court  judges  proi)er;  but  such  aniend- 

"  Applewhite  v.  Allen,  y  Huiiipli.  G98.     Clerical  mistakes  in  liie  form  of 
the  writ.     Cutler  r.  Kathboiu',  1  Hill,  205. 
"  East  Boston  Co.  v.  Persons,  2  Hill,  120. 
»♦  lb. 

"  Anon..  4  Hill,  fldU. 
'•  Poyen  v.  Mf.Veill,  Kf  .M<t.  2U1. 
•' Simeoke  r.  Krcijcrirk,  1  Carlcr,    (Inil.).'i4. 
»^  Applewliitc  V.  .\ll.n,  H  Humph.  WH. 
"  Bergew-h  v.  K<i-vii.  \U  ,Mo.  128. 
*•  Wlu-ttt  V.  ('atU-rlin,  2;{  Ind.  8.",. 

»'  Whaling  r.  Sliahs,  20  Wen<l.  OT.'J;  Hmitli  i-.  Ilowanl.  23  Ark.  203. 
»»  Fririk  r    FI.-iummm     ICilm    I'.s     |'„rl.^v     H.iiMiini     I    Ntl.l,    (i:.     I'li.nix   v. 


C82  THE  LAW  OF  REPLEVIN. 

mouts  aiv  in  tlio  discrt'tioii  of  llii'  court,  and  when  it  appears  that 
the  (luestion  raised  ujjon  the  bond  or  affidavit  will  be  tlie  validity 
of  a  tax  lev\%  tlie  h'ave  will  be  refused.'"  Reasonable  amend- 
ments tx)  the  i)leading;sare  permitted  whenever  the  ends  of  justice 
will  be  promoted;  in  case  either  party  is  taken  by  surprise,  he  is 
entitled  to  a  continuance,  or  reasonal)le  time  to  prepare.'* 

§  801.  Death  of  party  to  the  suit.  It  remains  to  be  con- 
sidered what  effect  the  death  of  a  party  will  have  upon  the  suit. 
Kei^levin  has  ever  been  regarded  as  in  the  nature  of  tort,  and  such 
actions  die  with  the  person,  in  the  absence  of  statutory  provisions 
to  continue  tliem.'^  So  replevin  has  in  many  cases  been  held  to 
abate  Avith  the  death  of  the  defendant,^*  and  judgment  for  return* 
which  could  only  be  made  upon  some  investigation  into  the  merits, 
was  refused."  In  3rdler  v.  Lcuujton,  Harper,  (S.  C.)  131,  the 
court  says,  in  substance  :  There  is  nothing  in  the  nature  of  this 
action,  nor  in  the  doctrine  ou  the  subject  of  replevin  under  the 
various  statutes  or  the  common  law,  which  will  make  this  action 
an  exception  to  the  general  rule  in  such  cases,  that  where  the 
plaintiff  dies  the  suit  abates.  The  merits  of  the  case  have  nothing 
to  do  \\nt\\  the  question  of  abatement.  The  defendant  loses  no 
right ;  he  is  only  in  the  situation  of  any  other  person  prosecuting 
a  right.  The  writ  of  retorno  cannot  issue,  because  that  would  be 
unjust ;  because  the  return  could  only  be  made  upon  a  determina- 
tion of  the  merits,  and  here  no  determination  on  the  merits  can 
be  had.  In  a  case  in  trover  which  arose  in  Pennsylvania  the 
court  said  in  substance :  If  by  possibility  a  case  should  arise  in 
which  there  was  originally  no  other  remedy  than  trover,  w^e  should 
be  sorry  to  say  that  by  the.  death  of  the  defendant  there  should 
be  a  failure  of  justice.  But  there  is  no  question  that  trover  dies 
with  the  defendant ;  and  if  the  plaintiff  might  have  chosen  an- 

Clark,  2  Mich.  327  ;  Jackson  v.  Virgil.  3  Johns.  540;  Shelton  v.  Berry,  19 
Tex.  154;  Crist  v.  Parks,  19  Tex.  234;  Eddy  v.  Beal,  34  Ind.  16L 

^s  McClaughry  v.  Cratzenbc-rg,  39  111.  123. 

^  Hellings  r.  Wright,  2  liar.  (14  Pa.  St.)  374. 

'^  Kingsbury  V.  Lane,  21  Mo.  115. 

3«  Webber  V.  Uuderhill,  19  Wend.  447;  Burkle  v.  Luce.  6  Hill,  558;  Burkle 
r.  Luce,  1  N.  Y.  163;  Hopkins  v.  Adams,  5  Abb.  Pr.  R.  351  ;  Same  v.  Same, 
6  Duer,  685;  Mellen  v.  Baldwin,  4  Mass.  480  ;  Foster  v.  Chamberlain,  41  Ala. 
158;  Rector  v.  Chevalier,  1  :Mo.  345  ;  Lockwood  v.  Perry,  9  Met.  440. 

2'  Miller  v.  Langdon,  Harper  (S.  C.)  131 ;  Merritt  v.  Lumbert,  8  Gr.  (Me.) 
128.  Death  of  plaintiff  does  not  abate  the  suit.  Reist  v.  Heilbrenner.  US. 
Jc  R.  (Pa.)  132. 


MISCELLANEOUS.  683 

other  remedy,  and  chose  to  adojit  this  iierishable  one,'*  he  has  no 
ground  of  eoniphiint  if  his  action  perish.  But  these  cases  do  not 
stand  alone.  In  an  able  case  in  Pennsylvania  it  was  said : 
"  Replevin  does  not  abate  by  the  death  of  a  defendant  while  the 
suit  is  pending ;  whore  one  man  has  property  of  another  in  his 
possession,  his  fortune  ought  to  answer  it."™  The  reason  for  the 
rule  which  abated  such  suits  was,  that  an  action  for  tort  was 
purely  personal.  When  the  tort  feasor  retains  the  property,  all 
reasons  seem  to  point  to  the  justice  of  making  his  representations 
answer  for  its  delivery.  In  Maryland  it  is  held  that  the  suit  does 
not  abate  by  the  death  of  the  plaintitt';  his  executor  or  adminis- 
trator may  be  made  party  and  prosecute.*"  So  in  Xew  York  ;  it 
survives  the  death  of  the  plaintiff,  and  is  continued  in  the  name 
of  his  representatives;  the  sureties  continue  to  be  liable;  but  it 
does  not  survive  the  death  of  the  defendant.*' 

^  Ilenth  V.  Metzer,  G  S.  &  H.  273.  See  Ld.  Mausficlcl  ia  Humbly  r.  Trott 
Cuwp.  374. 

=»  Keite  v.  Boyd,  16  S.  &  R.  301. 

«  Fistcr  V.  Beall,  1  liar.  &  J.  (:M<1.)  31. 

*'  Lahley  v.  Brady,  1  Daly,  443.  See  Ileinmuller  r.  Gray,  44  How.  Pr. 
26;  Emerson  v.  Bleakley,  2  Abb.  Dec.  22. 

NoTK  XXXVn.  Practice.  Summons  and  Returns. — A  summons 
against  "  J.  B.  N.,  sheriff,"  upon  a  complaint  against  "  J.  B.  N.  sheriff,  of 
C.  county,"  is  sufficient,  Nipp  v.  Eower,  9  Kans.  Ap.  854,  Gl  Pac.  448. 
The  statute  allowed  the  service  upon  the  sheriff  by  leaving  it  at  his  office 
"  during  business  hours."  A  return  of  service  by  leaving  at  the  sheriff's 
office,  with  the  under-sheriff  on  a  day  named  was  held  a  substantial  com- 
pliance with  the  statute.  Id.  The  statute  required  that  a  service  of  sum- 
mons from  a  justice,  by  copy  left  at  the  abode  of  the  defendant,  should 
suffice;  but  the  copy  was  required  to  be  certified  by  the  constable. 
Held,  that  for  want  of  certification  of  the  summons,  the  judgment  was 
voidable  but  not  void,  Friend  r.  Green,  43  Kans.  1G7,  U3  Puc  93.  In 
Barr  v.  Kennemore,  47  S.  C.  25G,  25  S.  E.  134,  it  was  held  that  the 
statute  requiring  the  summons  trora  a  justice  court  be  served  20  days 
before  the  day  of  trial,  was  not  applicable  to  a  summons  in  replevin, 
although  demanding  an  alternative  judgment  for  the  value  of  tlu-  goods. 
The  fact  that  the  HummonB,  which  is  the  institution  of  the  action,  was 
not  issued  until  actual  replevin  of  the  goods,  does  not  defeat  the  action. 
American  Bank  v.  Strong,  Mo.  Ap.  85  S.  W.  03!». 

When  a  writ  has  In  good  faiih  been  taken  out.  In  all  things  conform- 
ing to  the  Htafule,  and   within  a  reaHonable  time  aflerwartls  delivered 

to  an  officer  for  execution,  the  suit  must  b<'  deemed  to  have  I n  com- 

m<'ncer|   when  the  writ   was  In   proper  form   for  execution,  and  nothing 


684  THE  LAW  OF  REPLEVIN. 

was  remaining  but  to  place  it  in  the  sheriff's  hands,  McMillan  v.  Lamed, 
41  Mich.  521.  2  N.  W.  662.  Dilatory  motions  and  the  like,  must  be  inter- 
posed at  the  first  instance;  the  motion  to  dismiss  on  the  ground  that 
the  defendant  is  an  officer  and  took  the  goods  under  execution,  is  too 
late  after  verdict,  Waite  v.  Starkey,  68  Vt.  181,  34  Atl.  692.  By  ap- 
pearance, joining  issue  and  continuing  the  cause,  the  defendant  sub- 
mits to  the  jurisdiction,  Clark  v.  Dunlap,  50  Mich.  492,  15  N.  W.  565. 
Objections  to  the  bond  come  too  late  after  judgment,  DeBow  v.  McClary, 
2  McCord,  44.  Pleading  to  the  merits  waives  all  defects  in  the  writ 
and  bond,  Tripp  v.  Howe,  45  Vt.  523. 

Every  requisite  of  the  statute  must  be  strictly  complied  with,  Carlon 
V.  Dixon,  12  Ore.  144,  6  Pac.  500.  Where  the  statute  allows  the  de- 
fendant to  retain  the  goods  by  giving  forthcoming  bond  within  a 
stated  period,  the  officer  cannot  lawfully  deliver  the  goods  to  the  plain- 
tiff until  the  lapse  of  this  period,  and  the  failure  of  the  defendant  to 
exercise  his  right,  Wyatt  v.  Freeman,  4  Colo.  14.  And  if  the  officer 
delivers  the  goods  to  the  plaintiff  before  the  lapse  of  the  statutory 
period,  the  court  on  application  should  order  the  goods  returned  to  the 
defendant,  upon  execution  of  the  statutory  bond,  Id.  Where  the  plain- 
tiff is  allowed,  if  the  officer  fails  to  take  the  goods,  to  abandon  his  de- 
mand for  their  return  and  go  for  their  value,  it  must  appear,  in  order 
to  justify  this  course  of  proceeding,  that  there  was  effort  on  the  part 
of  the  officer  to  find  and  take  the  goods.  A  return  of  service  by  leaving 
a  true  copy,  etc.,  without  more,  will  not  suffice,  Meyer  v.  Mosler,  64 
Miss.  610,  1  So.  837.  One  who,  though  beneficially  interested,  has  re- 
fused to  be  a  party,  cannot  interpose  to  apply  for  a  continuance,  Burg- 
wald  V.  Donelson,  2  Kans.  Ap.  301,  43  Pac.  100. 

Three  suits  between  the  same  parties,  depending  on  the  same  evi- 
dence, may  be  consolidated  against  the  objections  of  the  parties;  the 
.fact  that  a  surety  in  a  bond  in  one  case  is  a  material  witness,  and 
would  be  competent  in  the  other  cases,  will  not  be  an  obstacle  if  the 
statute  allow  the  substitution  of  securities,  Kimball  v.  Thompson,  4 
Cush.  441;  and  if  other  sureties  are  not  substituted,  the  witness  may 
still  be  examined  in  the  two  cases  in  which  he  is  competent.  Id.  But 
in  Mississippi,  where  two  suits  between  the  same  parties  for  different 
cattle,  were  consolidated  and  one  judgment  entered,  it  was  held  that 
inasmuch  as  there  were  different  sureties  in  the  forthcoming  bond  in 
each  case,  this  was  error,  because  tending  to  make  each  surety  liable 
for  all  the  cattle;  whereas  he  had  stipulated  for  liability  only  in  respect 
to  part,  Spratley  v.  Kitchens,  55  ]\Iiss.  578.  A  mere  bailiff  who  has 
taken  possession  of  goods  for  a  mortgagee,  and  against  whom  an  action 
in  replevin  is  instituted,  will  not  be  permitted  to  control  such  action 
and  stipulate  away  the  rights  of  the  mortgagee,  Casper  v.  Kent  Circuit 
Judge,  45  Mich.  251,  7  N.  W.  816.  The  election  of  the  defendant,  al- 
lowed by  statute,  to  take  the  value  of  the  goods,  may  be  made  after  a 
jury  is  impaneled  to  assess  the  damages;  it  need  not  be  in  writing. 
Brown  v.  Horning,  76  Mich.  542,  43  N.  W.  453.  Where  a  third  party 
inter-pleads,  and  the  issues  between  plaintiff  and  defendant  are  first 


MISCELLANEOUS.  685 

tried,  judgment  should  not  be  entered  until  determination  of  the  inter- 
plea,  Winchester  v.  Bryant,  65  Ark.  116,  44  S.  W.  1124.  The  court  may- 
control  its  own  officers  upon  mere  motion;  no  action  need  be  brought  to 
compel  the  clerk  to  enter  a  satisfaction  of  judgment  to  which  the  party 
is  entitled,  Manker  r.  Sine,  47  Neb.  736,  66  N.  W.  840.  Where  the 
sheriff,  after  execution  of  the  writ,  has  taken  a  portion  of  the  goods 
from  the  plaintiff's  possession,  he  will,  after  judgment  for  the  plain- 
tiff, be  required  to  restore  thern,  Veeder  v.  Fiske,  6  N.  M.  288,  27  Pac. 
642.  Where  notes  evidencing  the  price  of  the  goods  replevied  are 
outstanding,  the  court  may  protect  the  rights  of  the  defendant,  by  re- 
quiring as  a  condition  of  the  judgment  that  the  notes  shall  be  filed  in 
court  for  surrender  to  the  defendant,  upon  payment  of  the  judgment. 
Hyland  v.  Bohn  Co.,  92  Wis.  157.  65  N.  W.  170.  The  court  las  power 
to  require  a  bond  with  the  statutory  conditions,  if  those  contained  in  the 
original  bond  are  not  sufficient  to  secure  the  defendant  against  injury, 
Treman  v.  Morris,  9  Ills.  Ap.  237.  Goods  taken  from  the  officer  by  cross- 
replevin  will,  on  motion,  be  restored  to  the  officer,  and  the  second  writ 
set  aside,  Weiner  v.  Van  Renssalaer,  43  N.  J.  L.  547.  George  obtained 
judgment  against  Delos,  and  upon  execution  thereon  the  constable 
levied  upon  certain  chattels;  Carter  brought  replevin,  the  officer  was 
indemnified  by  George;  nevertheless,  he  entered  into  a  collusive  ar- 
rangement with  Carter  by  which,  without  the  knowledge  of  George 
or  his  own  attorneys,  a  judgment  was  entered  in  favor  of  Carter  for 
possession  of  the  goods.  On  motion  the  judgment  and  transfer  were 
vacated,  Carter  v.  Stevens,  55  Hun,  604.  8  N.  Y.  Sup.  217,  S.  C.  60  Hun, 
582,  15  N.  Y.  Sup.  42.  The  plaintiff  in  an  execution  may  be  required  to 
indemnify  the  officer  whose  levy  is  assailed  by  replevin  at  the  suit  of 
a  stranger,  Id.  Where  the  plaintiff  in  execution  is  required  to  give  a 
bond  of  indemnity  to  the  officer  against  all  costs  "  incurred  or  which 
n.ay  be  incurred  "  in  a  replevin  against  him,  the  bond  must  be  in  a 
penalty  specified,  though  no  direction  to  this  is  prescribed  in  the  order, 
nor  is  any  penalty  specified.  Id.  Where  plaintiff  attempts  to  put  off 
different  or  inferior  articles  under  a  judgment  of  rctorno,  and  an  in- 
vestigation is  had,  the  plaintiff  may  be  adjudged  to  pay  the  costs  of  this 
investigation,  Irvin  v.  Smith,  68  Wis.  228,  31  N.  W.  912.  Where,  after 
a  finding  that  the  defendant  had  obtained  possession  of  the  goods  and 
is  liable  to  an  intervenor  for  the  use  thereof,  it  is  made  to  appear  that 
in  fact  the  goods  were  delivered  to  the  Intervenor,  it  is  the  duty  of 
the  court  to  readjust  its  findings  and  judgment  so  as  to  conform  to  the 
facts,  Klinkert  v.  Fulton  Co.,  113  Wis.  493.  89  N.  W.  507. 

The  statute  providing  that  if  the  bond  is  Insufficient  In  form  or 
amount,  or  In  rcKpect  of  the  solvency  of  the  sureties,  the  court  may 
remedy  the  defe<-t  by  such  orders  as  are  necesBary,  does  not  confer 
authority  to  make  extraordinary  rules  or  orders,  inconsistent  to  the 
general  policy  of  the  law  protecting  the  rights  of  poor  perHons.  Horton 
V.  Vowel.  4  Helsk.  G22.  In  an  artlon  to  recover  certain  bank  deposits 
f!vld»'nc»'d  by  nc-Kotlnblc  (crllflcutcH  of  dcpoHlt.  judKiiiciit  wuh  Klvcn 
for  the  plaintiff  upon  the  cerlincate:j  produced  by  the  udnilnlHtrator  of 


C86  THE  LAW  OF  REPLEVIN. 

plaintiff's  deceased  wife,  who  claimed  them  as  assets  of  his  decedent's 
estate.)  under  subprnia  duces  tecum.  The  court  of  its  own  motion 
ordered  the  certificates  impounded  in  the  hands  of  the  clerk  to  be 
retained  until  the  further  order  of  the  court.  It  was  held  that  this 
was  irregular;  that  the  court  had  no  power  to  make  any  such  order, 
that  the  order  was  a  nullity  both  as  to  the  administrator  of  the  wife, 
and  as  to  the  plaintiff,  and  that  plaintiff  might  bring  replevin  without 
leave  of  the  court.  Read  v.  Brayton.  143  N.  Y.  342.  38  N.  E.  2G1.  V/here 
an  appeal  has  the  effect  to  annul  the  judgment  appealed  from  it  is  the 
duty  of  one  in  possession  of  the  goods  obtained  under  such  judgment, 
to  restore  them;  and  the  court  in  which  the  appeal  is  pending,  is  vested 
with  authority  to  enforce  this  duty  in  a  summary  manner  and  punish 
the  party  for  contempt  if  its  order  is  disputed,  Jenkins  v.  The  State,  CO 
Neb.  205,  82  N.  W.  622.  The  statute  allowed  a  sale  of  perishable  goods, 
or  those  expensive  to  keep;  logs  were  sold  by  the  sheriff  under  this 
statute;  it  was  held  the  owner  could  not  recover  the  value  from  the 
purchaser  at  the  sheriff's  sale,  who  was  a  stranger  to  the  proceeding, 
whether  the  logs  should  have  been  sold  or  not,  Riggs  v.  Coker,  69  Miss. 
266,  13  So.  814. 

Costs. — If  plaintiff  has  given  bond  conditioned  "  to  pay  all  costs, 
etc.,"  he  cannot  be  required  to  give  other  security  for  costs,  Moore  v. 
Herron,  17  Neb.  697,  703,  24  N.  W.  425,  451.  Replevin  cannot  be  prose- 
cuted in  forma  pauperis,  in  the  first  instance;  but  if  bond  be  given  as  re- 
quired by  the  statute,  and  costs  accumulate,  on  a  rule  for  further  security 
the  plaintiff  may  take  the  pauper's  oath,  Horton  v.  Vowel,  4  Heisk.  622. 
AVhere  each  party  prevails  as  to  part  of  the  goods,  each  recovers  costs, 
Vinal  V.  Spofford,  139  Mass.  126,  29  N.  E.  288.  The  costs  are  divided, 
Friend  v.  Green,  43  Kans.  167,  23  Pac.  93.  Apportioned  equitably,  Poor 
V.  Woodburn,  25  Vt.  235.  Each  party  may  recover  damages  as  well  as 
costs,  Knowles  v.  Pierce,  5  Hbust.  178.  Plaintiff  recovered  goods  to  the 
value  of  Two  Hundred  Dollars  ($200),  defendant  to  the  value  of  Two 
Hundred  Sixty  ($260)  Dollars;  10-23  of  the  costs  were  awarded  to 
plaintiff,  and  13-23  to  the  defendant.  Brunk  v.  Champ,  88  Ind.  188. 
But  where  the  statute  expressly  allows  costs  to  the  plaintiff  in  replevin, 
and  to  defendant,  "  unless  the  plaintiff  is  "  entitled  to  costs,  no  room  is 
afforded  for  a  division  of  the  costs,  Phipps  v.  Taylor,  15  Ore.  484,  16 
Pac.  171.  Under  the  Code  of  New  York  the  plaintiff,  to  recover  costs, 
must  show  that  the  value  of  the  goods,  and  his  damages,  amount  to  Fifty 
Dollars  or  more;  otherwise  costs  recovered  cannot  exceed  the  sum  of 
the  value  and  the  damages,  Rapid  Safety  Co.  v.  Wyckoff,  45  N,  Y.  Sup. 
1028.  If  plaintiff  waives  damages,  and  gives  no  evidence  of  value,  he 
recovers  no  costs,  Herman  v.  Girvin,  8  Ap.  Div.  418,  40  N.  Y.  Sup.  845. 
Where  the  recovery  of  costs  depends  upon  the  value  of  the  goods  "  as 
fixed."  a  judicial  determination  of  the  value  is  necessary.  Wolf  v. 
Moses,  57  N.  Y.  Sup.  696.  Where  defendant  prevails  he  is  entitled  to 
costs;  and  the  plaintiff  is  estopped  to  deny  the  jurisdiction  of  the  court 
to  award  costs,  Walko  v.  Walko,  64  Conn.  74.  29  Atl.  243;  but  see  Jordan 
V.  Dennis,  7  Mete.  590;  Gary  v.  Daniels,  5  Mete.  236.     If  defendant  dis- 


MISCELLANEOUS.  687 

claims,  he  may  recover  costs,  Nettleton  r.  Jackson,  30  Mo.  Ap.  135. 
Fees  of  witnesses  subpoenaed  by  the  plaintiff  to  a  trial  which  is  deferred 
by  reason  of  a  change  of  venue  at  the  instance  of  the  adversary  party, 
are  properly  taxed  against  the  defendant,  Teeple  i\  Dickey.  94  Ina. 
124.  Where  creditors  represented  by  the  sheriff  come  into  the  cause 
of  their  own  motion,  and  fail,  all  costs  should  be  adjudged  against  them, 
nothing  against  the  sheriff.  Van  Gundy  v.  Carrigan.  4  Ind.  Ap.  333,  30 
N.  E.  993.  Attorney's  fees  cannot  be  uecovered  by  the  defendant  unless 
the  circumstances  warrant  exemplary  damages,  Cowden  v.  Lockridge, 
60  Miss.  385.  Caraway  v.  Wallace,  Miss.,  17  So.  930.  Where  the  case 
is  not  one  for  the  allowance  of  exemplary  damages,  counsel  fees  cannot 
be  recovered  as  part  of  the  damages:  nor  railway  or  hotel  bills;  nor  the 
value  of  the  plaintiff's  time  in  attending  the  litigation  or  in  seeking  out, 
identifying  and  demanding  the  goods,  Loeb  r.  Mann,  39  S.  C.  465,  18  S. 
E.  1.  An  officer  whose  levy  is  contested  and  who  prevails  only  because 
the  plaintiff  fails  to  serve  notice  of  his  right  before  the  institution  of 
his  suit,  as  required  by  statute,  is  not  allowed  his  attorney's  fee,  even 
though  his  levy  was  required  by  his  official  duty,  and  it  was  part  of 
his  duty  also  to  defend  the  action,  Rickabaugh  v.  Bada,  50  la.  56.  A 
successful  suitor  does  not  recover  his  counsel  fees  nor  have  an  allow- 
ance for  his  time,  trouble  and  indirect  loss,  Jacobson  v.  Poindexter,  42 
Ark.  97.  Bond  conditioned  to  pay  the  costs  of  the  action,  the  sureties 
are  liable  for  the  taxable  costs,  but  not  for  the  attorney's  bill  or  ex- 
penses of  the  preparation  of  the  defense,  Kentucky  Co.  v.  Crabtree,  26 
Ky.  L.  Rep.  283,  80  S.  W.  1101.  The  collector  of  a  decedent's  estate  who, 
pending  a  replevin  and  after  the  appointment  of  an  administrator, 
turns  over  to  him  the  goods  obtained,  is  not  to  have  an  allowance 
against  the  administrator  in  the  same  action  for  costs  and  counsel  fees; 
even  upon  suggestion  that  the  defendant  is  insolvent,  Loven  v.  Parson, 
127  N.  C.  301,  37  S.  E.  271.  Plaintiff  prevailing  recovers  costs  against 
both  defendant  and  the  sureties  in  the  bond.  Hall  v.  Tillman,  110  N.  C. 
220.  14  S.  E.  745. 

NoTK  XXXVIII.  Justice  of  the  Peace.  Jurisdiction. — The  statute  re- 
quiring a  justice  of  the  peace  to  enter  judgment  forthwith  upon  the 
verdict  of  the  jury,  if  he  falls  to  do  so  and  adjourns  the  cause  to  an- 
other day,  he  loses  jurisdiction.  Smith  v.  Hahr,  62  Wis.  244.  22  N.  W. 
438. 

Plaintiff's  affidavit  appraised  the  goods  at  $265,  which  was  within 
tiie  juriKdiction;  on  appeal  to  the  County  Court  the  jury  llxcd  the 
value  at  $365.  which  was  in  excess  of  the  jurisdiction  of  the  justice. 
Held,  Uie  cause  must  be  dismlsHod,  Thornlly  v.  Pierce.  10  Colo.  250.  16 
Pac.  335;  and  the  goods  restored  to  the  defendant;  there  can  be  no  re- 
mittitur. Novllle  V.  Dew.  94  N.  C.  43.  So  where  the  value  and  the 
daniaKCB  for  detention  exceed  the  justice's  jiiriBdlctton.  /</.  In  Ne- 
brawka  the  statute  provlrjcK  that  "  whenever  the  appralKcd  value  of  the 
prop«Tty  •  •  •  Hhail  cxcr-.-d  $200  the  justice  hIuiII  certify  the  pro- 
ceedlnK  to  the  DlHtrld  C^oiirt."  Held,  that  while  the  juHtlce  huH  jurlH- 
diction,    derived    from    the    flllug   of   un    ulllduvlt.   uh    required    by    Ihu 


6S8  THE  LAW  OF  REPLEVIN. 

statute,  he  will  be  divested  of  jurisdiction  to  try  the  cause  if  the  prop- 
erty is  appraised  in  excess  of  $200.  but  will  retain  jurisdiction  to  certify 
the  cause  to  the  District  Court;  that  where  the  property  is  returned 
to  the  defendant  for  plaintiff's  failure  to  give  bond,  the  justice  may 
proceed  and  try  the  cause,  and  if  he  finds  for  the  plaintiff  and  assesses 
his  damages  in  exceeding  $200,  he  may,  on  the  filing  of  a  remittitur 
by  the  plaintiff  for  he  excess,  enter  judgment  for  $200  as  damages,  Hill 
V.  Wilkinson,  25  Neb.  103,  41  N.  W.  134.  A  collusive  and  fraudulent 
undervaluation  of  the  goods  with  intent  to  defeat  the  constitutional 
limitation  of  the  Justice  rf  the  Peace  will  not  avail.  Ball  v.  Sledge.  82 
Miss.  749,  35  Ho.  447.  But  it  -vas  declared  in  the  same  case  that  the 
jurisdiction  is  not  defeated  by  mere  t  -nflict  in  the  testimony  as  to  the 
value,  and  does  not  depend  upon  the  conclusion  of  the  jury  as  to  the 
value.    Ball  v.  Sledge,  supra. 

Mortgagee  may  sue  in  replevin  for  only  a  part  of  the  mortgaged 
goods  and  so  confer  jurisdiction  upon  a  justice  of  the  peace,  Kiser  v. 
Blanton,  123  N.  C.  400,  31  S.  E.  878.  Suit  commenced  before  a  justice 
to  recover  nine  cattle,  the  value  of  which  exceeded  the  jurisdiction; 
after  the  trial  was  commenced  plaintiff  voluntarily  relinquished  a 
number  of  the  cattle,  reducing  the  value  to  a  sum  within  the  jurisdic- 
tion, and  the  trial  proceeded  without  objection.  Held,  the  defect  was 
cured;  the  justice  by  the  disclaimer  as  to  a  portion  of  the  cattle  ac- 
quired jurisdiction  of  the  subject  matter.  Nigh  v.  Dovel,  84  Ills.  Ap. 
228.  The  writ  is  demandable  of  right,  the  justice  is  not  required  to 
make  any  preliminary  inquiry,  Watson  v.  Watson,  9  Conn.  141.  The 
justice  does  not  lose  jurisdiction  by  an  adjournment  authorized  by 
statute,  Wheeler  v.  Paterson,  64  Minn.  231,  66  N.  W.  964;  nor  by 
being  providentially  prevented  from  reaching  his  oflQce  on  the  day 
appointed  for  trial;  he  may  afterwards  appoint  another  day,  Cromer  v. 
Watson,  59  S.  C.  488,  38  S.  E.  126. 

The  constitution  of  South  Carolina  declares  that  justices  of  the 
peace  shall  have  such  jurisdiction  as  may  be  provided  by  law  in  ac- 
tions ex  delicto  where  damages  claimed  do  not  exceed  $100.  The  statute 
assuming  to  authorize  justices  to  entertain  actions  for  the  recovery  of 
personalty,  where  the  value  as  stated  in  the  affidavit  does  not  exceed 
$100,  was  approved,  and  the  justice's  jurisdiction  sustained,  even  though 
damages  were  claimed  for  the  detention,  Dillard  v.  Samuels,  25  S.  C. 
318.  Where  the  statute  gives  jurisdiction  to  justices  of  the  peace 
"  in  actions  for  injuries  to  personal  property  *  *  *  where  the 
damages  claimed  shall  not  exceed  fifty  dollars,"  an  action  for  the 
value  of  goods  wrongfully  converted  cannot  be  maintained  by  denomi- 
nating it  assumpsit,  or  waiving  the  tort  and  demanding  the  sum  for 
which  the  defendant  sold  the  goods,  Spencer  v.  Vance,  57  Mo.  427.  In 
Indiana  a  justice  has  no  jurisdiction  unless  the  complaint  is  verified, 
and  a  bond  given  pursuant  to  the  requirements  of  the  statute,  Allen  v. 
Frederick.  26  Ind.  Ap.  430,  59  N.  E.  330.  A  Justice  of  the  Peace  having 
issued  a  writ  of  replevin  upon  an  affidavit  not  complying  with  the 
statute,  may,  it  seems,  allow  the  affidavit  to  be  amended,  and  proceed. 
Clow  V.  Gilbert,  54  Ills.  Ap.  134;  but  if  no  amendment  is  perfected  the 


MISCELLANEOUS.  689 

only  course  open  to  him  is  to  dismiss  the  suit,  and  he  cannot  award 
return  of  the  goods.  Id.  In  Missouri  the  original  statement  before  a 
justice  may  be  amended,  and  the  failure  to  state  therein  that  plaintiff 
is  entitled  to  the  possession  of  the  goods,  or  to  claim  or  state  any 
damages  or  to  pray  judgment,  does  not  impair  the  jurisdiction,  Lakey 
r.  Hoops,  80  Mo.  Ap.  508.  A  justice  may  entertain  an  action  for  the 
recovery  of  "a  framed  building;  "  this  description  of  the  thing  does 
not  import  that  it  is  parcel  of  the  realty,  Elliott  v.  Black,  45  Mo.  372. 
The  filing  with  a  justice  of  the  peace  of  the  notice  served  upon  the 
owner  of  trespassing  animals,  claiming  damages  for  trespass,  confers 
upon  the  justice  jurisdiction  to  enter  a  judgment  for  the  award  of  the 
appraisers,  without  the  issuing  of  summons,  Randall  r.  Gross,  Neb.,  93 
N.  W.  223.  Where  the  statute  so  provides  the  statement  of  value  in  the 
affidavit  is  conclusive  as  to  the  jurisdiction  of  the  justice,  Knoche  v. 
Perry,  90  Mo.  Ap.  483.  Failure  of  the  justice  to  mark  as  filed  the 
affidavit  and  statement  required  by  the  statute  does  not  defeat  his 
jurisdiction.  Hopper  v.  Hopper,  84  Mo.  Ap.  117. 

Judgment.  The  justice's  judgment  must  pursue  the  statute,  Fischer 
V.  Cohen,  22  Misc.  117,  48  N.  Y.  Sup.  775.  In  Indiana  a  justice  cannot 
give  judgment  for  return  or  the  value,  Woodward  v.  Myers,  15  Ind.  Ap. 
42,  43  N.  E.  573.  In  Michigan,  if  the  plaintiff  is  non-suit,  it  is  the  duty 
of  the  justice  to  give  judgment  for  return  of  the  goods,  and  for  damages. 
McCabe  v.  Loonsfoot,  119  Mich.  323,  78  N.  W.  128.  Where  the  plaintiff 
fails  to  appear,  defendant  may,  even  though  there  be  no  return  to  the 
writ,  waive  the  judgment  of  retorno  and  take  judgment  for  the  value, 
Frank  v.  Brown,  119  Mich.  C31.  78  N.  W.  670.  The  statute  authorizing 
an  adjournment  "  where  the  pleadings  are  closed,'  an  adjournment  may 
be  ordered  at  once  on  over-ruling  a  motion  of  the  defendant,  upon  spe- 
cial appearance,  challenging  the  jurisdiction  of  the  court.  The  defend- 
ant not  having  answered,  nor  intending  to  answer,  the  pleadings  are 
closed,  Wheeler  i'.  Paterson,  64  Minn.  231,  66  N.  W.  964.  Service  of 
a  summons  from  a  justice  of  the  peace  by  leaving  a  copy  at  defendant's 
residence,  is  effectual,  though  the  copy  is  not  certified  by  the  constable, 
as  the  statute  requires.  Friend  v.  Green,  43  Kans.  167,  23  Pac.  93.  The 
reasoning  of  the  court  is  that  the  summons  from  a  District  Court  may 
be  served,  by  leaving  a  certified  copy;  therefore  the  express  command  of 
the  statute  is  to  be  treated  as  mere  recommendation  or  exhortation. 
A  justice  has  no  power  to  change  the  form  of  the  action,  Clark  v.  Clin- 
ton, 61  Miss.  337.  A  justice  may,  in  Minnesota,  allow  an  amendment  to 
a  complaint  to  correspond  to  the  proofs,  Larson  r.  .Jolinson.  83  Minn. 
351,  86  N.  W.  350.  A  justice  of  the  peace  has  no  power  to  amend  his 
Judgment  after  an  appeal,  and  such  amendment  in  no  manner  disturbs 
the  Judgment,  or  adds  to,  or  detracls  from  Its  effect  as  first  entered. 
Id.  The  appearance  and  defense  of  the  action  Is  equivalent  to  the  entry 
of  an  Issuable  plea.  White  r.  Kml)lem.  43  W.  Va.  819.  28  S.  E.  761.  The 
statute  requiring  the  appointment  of  a  Hpeclal  conKtabhf  to  be  emlorsed 
upon  the  affidavit  Ih  romp! led  with  l)y  Hu<h  endorsement  upon  the  under- 
taking to  whl(  h  the  affidavit  is  attached,  Cromer  v.  Watsou.  59  S.  C.  48S, 
38  S.  K.  126. 
44 


INDEX. 


REFERENCES   ARE  TO   PAGES. 


ABATEMENT. 

of  suit  by  death  of  party 683 

effect  of,  on  conditions  of  bond 373 

of  writ — 

where  bond  is  not  given 351 ,  353 

where  bond  is  defective 351 ,  353 

return  does  not  necessarily  follow 435,  436 

for  mistake  of  cleriv  return  not  adjudged ....     4-14 

plea  of.    (See  Plea  in  Abatement.) 

sale  by  plaintiff  does  not  work 538 

nor  plaintiffs  death,  or  abandonment  of  his  suit 538 

Uf>on  plaintiffs  death,  the  defendant's  right  revives,  and  he 

may  have  replevin 73 

ABANDONED  GOODS, 

the  property  of  the  finder    115 

ACCIDENT, 

confusion  of  goods  of  different  owners  Caused  by  ;  rights  of 

each 169,  170  et  soj. 

ACCOUNTS. 

cannot  l)e  adjusted  in  replevin 517 

ACTION,  vid.  Replevin. 

replevin  a  proceeding  partly  in  rem  and  partly  in  personam..       36 

form  of,  in  different  States 37 

cepit  detinet  and  detinnet 48 

similar  to  treH|)Hss  and  trover 43-45 

peculiarities,  (jrivileges  (o  plaintiff ;JH 

formerly  would  lit'  only  for  liistress 40-43 

title  and  right  to  possession  investigated 'M 

\  actual  detention  neceswiry  to  sustain 4H 

t  scope  of  the  inveHtigalion 41»,  50 

lies  only  for  chattels 87  r/  ««•(/. 

what  JH  or  ih  not  real  estate,  nuiy  be  investigntod.OO  et  Heq. 

for  what  it  lies ..   88  r/ arr/. 

GDI 


692  INDEX. 

PAGE 

ACTION  ON  THE  BOND. 

wlio  is  tlie  proper  plaintiff 398 

pleadings  of  the  plainlitT 400 

pleadings  of  the  defendant 400-408 

defenses  admissible  :  That  the  goods  were  not  taken  on  the 
writ  of  replevin  ;  that  no  judgment  of  return  was  given  ; 
or  a  judgment  variant  from  that  required  b}-  law  ;  that 
the  judgment  only  determined  tlie  right  of  possession, 
and  by  change  of  circumstances  plaintiff  in  the  replevin 
is  entitled  to  possession  :  that  the  goods  were  taken  by 
the  officer,  on  tlie  writ  of  ;f/or«o ;  that  the  goods  were 
returned  to  one  for  whom  tlie  defendant  in  replevin  was 
a  mere  agent  ;  that  the  bond  was  superseded  by  a  differ- 
ent bond 406 

that,  the  goods  were  returned  in  the  same  condition  as  when 
taken  ;  tliat  the  bond  was  not  a  replevin  bond  ;  that  the 
defendant  in  replevin  has  been  paid  for  the  goods  by  the 
party  from  whom  he  purchased  them,  and  who  was  sub- 
stituted in  that  action  ;that  the  replevin  was  discontinued 
by  an  agreement  adjusting  all  differences  ;  that  it  is  still 
pending  on  appeal  ;  that  tiie  bond  was  not  accepted  nor 
the  goods  replevied  ;  that  the  value  exceeded  the  juris- 
diction of  the  court ;  that  the  defendant  in  replevin  ac- 
cepted other  goods  in  lieu  of  those  replevied  ;  that  the 
goods  were  taken  under  process  of  law  and  sold,  or  are 
still  held  to  answer  such  process  ;  that  the  judgment 
was  given  on  the  mere  abatement  of  the  writ,  and  that 

plaiiitilT  is  the  real  owner 407 

that  after  tlie  first  replevin  was  discontinued,  defendant 
therein  brought  replevin  against  plaintiff  and  recovered 
the  goods ;  that  the  return  of  the  goods  was  prevented 
by  plaintiff ;  that  the  goods  were  returned,  or  tendered 
and  I'efused  ;  that  after  the  replevy  the  goods  were  taken 

from  the  otiicer  by  sviperior  riglit 408 

in  Illinois,  by  statute,  that  the  niei'its  were  not  determined 

in  the  replevin,  and  title  in  the  plaintiff  in  that  action. .     407 
though  the  failure  to  determine  tlie  merits  was  due 

to  a  defect  of  jurisdiction   406 

and  though  the  goods  be  not  returned 406 

this  defense  not  admitted  in  mitigation  of  damages 

without  plea 407 

nor  can  title  in  a  stranger  be  pleaded 407 

in  some  states  return  of  part  of  the  goods  is  a  defense  pro 

tanto 407 

but  not  return  of  part  of  a  single  whole,  like  the  machinery 

of  a  factory 407 

defenses  not  admissible  :  Death  of  jilaintiff  in  replevin,  and 
■^  that  defendant  in  that  suit  failed  to  present  his  claim 


INDEX.  603 

ACTION  ON  THE  BO:^!^— Continued.  page 

agiiinst  the  estate  :  that  plaintiff  failed  to  indemnify  the 
sheriir,  as  required  by  statute  ;  that  there  was  no  alter- 
native  judguient   for  the  value ;    or   no  judgment   for 
return  or  for  damages  ;  or  no  execution  on  the  judgment 
for  return  ;  or  that  there  was  only  one  suret}*,  tlie  stat- 
ute requiring  two  ;  or  irregularities  in  tlie  replevin  ;  or 
that  no  artidavit  was  filed  ;  or  that  no  search  or  demand 
was  made  by  tlie  ofticer  on  the  writ  of  reforno ;  or  that 
the  defendant  in  replevin  has  acquireil  a  lien  upon  lands 
suflicient  to  satisfy  liis  judgment ;  or  that  the  goods  were 
tendered,  not  within   a   reasonable   time  ;  or   after   the 
period  fixed  by  stipulation  of  the  parties ;  or  that  only 
part  of  the  goods  were  returned  ;  or  that  all  were  returned 
in  a  damaged  condition  ;  or  that  tlie  judgment  was  for 
costs  merely,  and  judgment  of  retorno  entered  years  after- 
wards ;  or  that  the  action  was  changed  to  another  county.     403 
nor  tliat  the  goods  were  destroyed  or  passed  beyond  control 
of  plaintiff  in  replevin,  witliout  his  fault  ;  or  tiiat  the 
claim  of  the  plaintiff  has  been  proved  against  the  assignee 
in  insolvency  of  the  adversary  party  ;  or  was  not  pre- 
sented against  such  a.ssignee  ;  or  tliat  the  bond  was  signed 
in  tlie  name  of  the  principal  therein,  witliout  authority  ; 
'  or  that  the  goods  were  exempt  bj-  law,  to  a  stranger  ;  or 
that  defendant  claimed  a  mechanic's  lien  for  the  goods 
upon  lands  to  which  they  had  been  attached  ;  or  that  the 
writ  of  replevin  was  void  ;  or  that  the  bond  recites  three 
plaintiffs,  when  in  fact  there  was  onlj'  one  ;  or  tliat  the 
bond  was  delivered  in  violation  of  a  secret  agreement 
between  the  principal  and  the  sureties  ;  or  that  the  i)rin- 
cijial  in  the  bond  was  a  married  woman,  and  so  discjual- 
ified  ;  or  that  one  of  the  principals  in  tlie  bond  was  liotii 
a   married  woman   and   an    infant;  or  tiiat  tlie   things 
replevied  were  not  chattels  ;  or  that,  while  in   plaintiff's 
possession,  they  were  libeled  and  condemned  in    athni- 

ralty,  at  his  suit 403 

or  an  injunction  not  restraining  plaintiff  in  replevin  from 
prosecuting  his  suit,  or  returning  the  goods  ;  or  that  the 
obligee  in  the  bond  has  no  beneficial  interest  ;  or  that 
the  judgment  has  been  performeil  in  part  ;  or  that  the 
bond  was  not  given  before  the  same  magistrate  wlio 
signed  tlie  writ  ;  or  that  the  bond  was  given  vohiiitarily, 
after  the  institution  of  the  suit  ;  or  defects  in  the  bond 
— which  were  waived  in  the  replevin  ;  <ir  that  time  was 
given  to  the  plaintiff  in  replevin  ;  or  an  order  beyoml  the 
jxiwer  of  the  court;  or  that  the  bond  was  prepared  for 
execution  by  other  Mureties  who  failetl  to  unite  in  it  ;  or 
the  fiiiliire  of  the  Hureties  to  acknowledge  the  bond,  and 
justify  as  required  by  sUitute KH 


69i  INDEX. 

ACTION  ON  THE  BOy!D— Continued.  page 

or  the  surrender  of  tlie  goods  to  a  stranger,  pursuant  to  an 
order  made  in  a  cause,  in  whicli  the  obhgee  was  no  party  ; 
or  that  the  sheriff  did  not  accept  or  approve  tlie  bond  ;  or 
tliat  the  goods  were  not  dehvered  to  the  obligee,  when 
the  surety  knew  they  had  aheady  been  delivered  to  an- 
other upon  a  bond  in  which  also,  he  was  surety  ;  or 
defects  in  tlie  writ  of  replevin  ;  or  going  to  judgment 
without  notice  to  the  surety  ;  or  that  there  was  no  judg- 
ment in  the  replevin — when  this  was  prevented  by  the 
plaintiff  in  that  action;  or  that  tlie  name  of  tlie  surety 
was  not  inserted  in  the  bond  ;  or  that  the  bond  was  not 
in  the  penalty  required  by  the  statute  ;  or  that  there  was 
a  misnomer  of  one  of  the  parties  ;  or  that  the  writ 
was  not  signed  by  the  justice  ;  or  was  not  executed  by 
the  sheriff,  named  as  payee  in  the  bond,  but  by  his  suc- 
cessor in  office  ;  or  that  there  was  no  adjudication  of  the 
rights  of  the  parties  in  the  replevin  ;  or  that  the  suit  was 
abated  or  discontinued  ;  or  that  the  principal  of  the  bond 
has  become  bankrupt ;  or  a  mortgage  held  by  one  of  the 
sureties  ;  or  a  mortgage  by  plaintiff  in  the  replevin. .  .404,  405 
two  bonds  in  the  same  terms  in  suits  between  the  same  par- 
ties, and  indistinguishable,  recovery  may  be  had  upon 

both  409,  410 

surety  subrogated  to  the  rights  of  the  principal 410 

if  the  goods  were  purchased  by  defendant  in  replevin  from 

the  plaintiff,  the  surety  may  set  off  the  price  410 

equitable  defenses 410 

effect  of  the  judgment  in  replevin  :  binds  the  surety 408 

though  the  judgment  was  the  result  of  a  compromise 384 

conclusive  as  to  the  value 413 

what  matters  must  be  determined  in  the  replevin  :  the  dam- 
ages from  unlawful  taking  and  detention,  where  the  bond 
is  conditioned  to  pay   "  all  moneys  adjudged   against 

plaintiff." 410-419,  495 

otherwise,  where  the  condition  of  the  bond  is  to  pay  "  all 

damages  sustained  by  tlie  plaintiff."  419 

evidence  :   the  recitations  of  the  bond  are  evidence  of  the 

value 410 

may  be  contradicted 410 

affidavit,  printa/aci'e  evidence  of  the  value 410 

sheriff's  appraisement  binds  neither  party 410 

sheriff's  return  on  the  writ  of  retomo  binds  parties  and 

privies 410 

measure  of  recovery 410-414 

the  full  value ;  though  the  only  breach  shown  was  the  fail- 
ure to  prosecute 410 

not  unless  ascertained  in  the  replevin 409 

nor  unless  there  was  a  judgment  for  return 413 


INDEX.  C95 

ACTION  ON  THE  BQ-SD— Continued.  pagk 

cases  contra 413 

the  full  value  allowed,  though   the  defendant  in  replevin 
has  only  a  special  interest,  if  the  plaintilT  was  a  mere 

wrong-doer 410,  411 

what  is  allowed— where  the  subject  of  the  replevin  is  a  license 

to  sell  liquoi*s 418 

appreciation  or  depreciation  in  the  value 412,  413 

of  wiiat  date  the  value  is  to  be  estimated 411,  412 

exemplary  damages  not  allowed 4 IS 

value  of  the  use.  when  allowed 411,  412 

costs  in  the  replevin 413^  414 

expense  of  procuring  the  return  of  the  goods 414 

cost  of  maintaining  live  stock 413 

in  Illinois,  the  attorney's  bill 413,  414 

otlierwise  in  Kansas  and  Indiana 413,  414 

otherwise  as  to  the  expense  of  preparation  and  con- 
duct of  the  defense 413 

or  cost  of  party's  attendance 413 

mitigation  of  damages  :  wliat  may  be  shown  in.  .409,  410,  415-417 

judgment  on  the  bond 418 

ACTOR, 

meaning  of  tlie  term 12 

wlien  and  how  defendant  becomes 434 

ACT  OF  GOD, 

effect  of,  on  condition  of  bond   434 

affecting  questions  of  damages 501 

ADMINISTRATORS.    See— Parties. 

judgment  against,  form  of 522 

ADVERSE  POSSESSION  OF  CHATTELS, 

owner  may  sell,  notwithstanding ,523,  524 

ADVERSE  POSSESSION  OF  REAL  ESTATE, 

chattels  seven-d  under,  replevin  does  not  lie 97,  98  et  scq. 

ADVERSE  TITLE  TO  REAL  EST.VTE, 

when  a  defense  in  a  suit  for  chattels  severed 1»7 

AFFIDAVIT, 

by  whom  must  be  made 542 

mast  not  be  entitled 541 

takes  the  place  of  the  plaint 502,  54 1 

not  a  jiart  of  the  record 540 

Contra, 6 10,  .550 

ia  the  foundation  of  the  suit 546,  5  lS-.')5 1 

a  prerequiKite   to  the  issuance  of  the  writ  or  order  for  do- 

livfiy 541 

Htrict  compliance  with  the  statute  retjuired  in 545,  54«l 

general  rejinisileH  nf 542 

muHt  Htate  — 

that  the  plaintiff  is  (jwnur  of  the  goodn 542 

meaning  of  "  owner  " B42,  513 


696  INDEX. 

PAGE- 
AFFIDAVIT— Co?j  i  in  ued. 

that    tlie    plaintiff    is   entitled    to    immediate    pos- 
session   f)42 

that  the  property  has  not  heen  taken  for  any  tax  as- 
sessment, etc 219-221,  545 

that  the  property  has  not  been  seized  on  execution, 

etc.,  against  plaintiff 545 

or  taken  on  a   writ  of   replevin   or  order   for  de- 
livery     545,  546 

must  describe  the  property  accurately 548-551 

when  the  affidavit  is  jurisdictional 546 

in  such  case  substantial  defects  are  fatal  at  any  stage    546 

must  allege  unlawful  detention 547,  548 

cases  in  whicii  tlie  affidavit  has  been  held  insufficient 547,  548 

must  state  the  value  544 

must  be  framed  to  meet  the  evidence 541 

not  evidence  for  plaintiff  540,  541 

not  essential  to  the  trial 540,  541 

trutii  of  cannot  be  questioned  on  trial  of  the  issue 540 

statement  of  value  in,  how  far  binding  on  the  parties  . . .   544,  659 
statement  of  value  in,  does  not  bind  sheriff  in  fixing  penalty 

in  bond 300 

writ  must  follow — 

in  description  of  property 548,  551 

in  statement  of  action 541 

statement  of  wrongful  taking  not   sustained    by   proof  of 

wrongful  detention 541 

amendments  to,  how  made 547-549.  551,  681,  682 

substantial   defects   not  amendable,  where   the  affidavit  is 

jurisdictional 549,  550 

defects  in  the  affidavit  immaterial,  if  the  goods  are    not 

found 550 

when  defects  in  must  be  taken  advantage  of 54.S 

how  defects  in  tlie  affidavit  may  be  waived 549 

when  the  affidavit  of  an  agent  or  attorney  will  suffice 550 

affidavit  of  agent  need  not  show  personal  knowledge 550 

nor  the  sources  of  his  information 550 

clerical  mistakes  regarded  indulgently  550 

loss  of,  how  supplied 544 

variance  in  description  from  bond  no  defense  to  suit  on  bond    394 
"  AGAINST  SURETIES  AND  PLEDGES," 

origin  and  meaning  of 11,  12 

AGENT, 

demanding  goods  must  produce  his  authority 343 

when  he  may  sustain  replevin 128,  129 

not  a  proper  defendant  for  goods  of  principal 135 

express  or  railroad,  when  demand  upon  sufficient 343 

when  may  be  sued  in  replevin 135 


INDEX.  (^,jj 

PAGB 

AGREEMENT, 

to  take  or  convert  will  not  sustain  replevin 132.  133 

ALIAS  WRIT 

formerly  issued  with  the  original 8 

of  replevin,  wlien  may  issue 420,  421 

may  issue  to  another  count}' 420,  421 

ALTERATION  OF  BOND, 

material  will  avoid  it 384 

AMENDMENT, 

rules  concerning 548,  551 ,  681 

not  allowed  where  it  will  raise  question  of  validity  of  a  tax  levy.    220 

of  affidavit,  how  made 546-549,  551,  681,  682 

of  writ 4 19,  421) 

of  tlie  pleadings.    See  Pleadings. 

as  to  parties 526,  .535 

of  tlie  verdict 642 

effect  of  amendments  upon  sureties 401 

ANIMALS.     See  Live  Stock. 

young  of,  born  pending  suit,  follow  judgment 1.32,  419 

impounded  ;  plaintiff  must  prove  tender  of  charges 231 

statute  must  be  strictly  observed 23 1 

or  tlie  party  will  be  regarded  as  a  trespasser 231 

APPRAISEMENT  OF  VALUE. 

to  fix  penalty  in  bond ...    300 

sheriff  may  take  goods  to  make 35 1 ,  ;{00 

not  binding  on  parties 305 

goods  taken  for  purpose  of.  must  l>e  returned  unless  bond  is 

given ;}.-,l 

not  evidence  of  value  in  assessment  of  damages 4S1,  482 

APPEAL. 

effect  of  on  condition  to  prosecute  with  effect 372 

by  defendant,  plaintiff  bound  to  follow 372 

from  judgment  in  favor  of  |>laintiff  for  part  of  tiie  goods  does 
not  oi)en  the  judgment  m  favor  of  the  def.-iulant  for  the 

residue 370,  OfiS 

perfected  after  officer  has  seized  tlie  goods,  officer  shouM  re- 
turn them 375 

defendant  succeeiling  in,  allowed  for  the  maintenance  of  live 

stfH'k  i>eniliMg ^,]-2 

return  of  goods  after  unsuccessful,  too  late 375 

cases  contra 3; 5,  370 

amendments  allowed.  iM'ndin>^p|)eal r>84 

from   Juhlice  of  till-    Peace,  jurisdirtion  of  ap|K'llat«  court, 

liriiiti-d  to  that  of  justice   ;t75 

not   if   the  justi<'<-*H  juriHiiictioii  is  exceeded  merely  by  in- 

creaHe  in  v.ihm  pr*iiding  the  nppi'iil ;175 

SUretien  in  foiilnornifig  bond  nut  h.-iblr  for  costs  lipmi.  from 

judgment  in  favor  of  plaintiff  ;i.',5 


01)8  INDEX. 

PAGE 

ARBITRATION, 

submission  of  suit  to,  eflFect  on  secruity 678 

submission  to.  does  not  bind  security 385 

by  consent  of  the  parties  releases  securities 394 

ARREST  OF  DEFENDANT, 

what  necessary  to  autliorize 131 

proceedings  upon , 132 

after  vacation  of  the  order 133 

when  allowed  for  concealing  property  to  avoid  writ 131 

ASSESSMENT  OF  DAMAGES, 

wlien  and  how  made 504,  505 

after  dismissal  of  suit  by  plaintiff 452 

generally  dependent  on  local  statute 505 

See  Damages. 
made  to  time  of  rendition  of  judgment 457 

ASSIGNEE, 

of  property  in  adverse  possession  of  another,  when  can  sue 

in  replevin 523 

ASSIGNEE  IN  BANKRUPTCY, 

entitled  to  goods  of  bankrupt 110 

ASSIGNEE  OF  FRAUDULENT  PURCHASER, 

replevin  by  defrauded   vendor 305 

ASSIGNEE  FOR  BENEFIT  OF  CREDITOR, 

damages  to,  against  a  sheriff 480 

ASSIGNMENT. 

of  replevin  bond  by  slieriflF . .  349,  350 

ATTACHMENT, 

sheriff  levying  has  a  special  property 126,  127,  279 

defendant  in,  cannot  replevy  property 239 

sheriff  defending  under  must  aver  a  debt  to  the  plaintiff  286,  562 

ATTACHING  CREDITOR. 

not  jointly  liable  with  officer  for  taking  526 

of  fraudulent  purchaser,  replevin  by  defrauded  vendee 305 

AUCTIONEER, 

selling  stolen  goods,  wlien  liable  , . . . .  333,  334 

when  he  may  sustain  replevin 128 

AUTHORITY  OF  BAILEE, 

purchaser  from,  must  take  notice 293 

AVOWANT, 

judgment  in  favor  of,  under  English  statutes 348,  349 

AVOWRY  AND  COGNIZANCE, 

defined 12,615 

distinction  between  these  pleas 615 

defendant  may  make ...       13 

by  avowry  or  making  cognizance  defendant   becomes  an 

actor  or  plaintiff 12,  434 

form  of  these  pleas  618 


INDEX. 


GDI) 


AVOWRY  AXD  COGNIZANCE— Co7i//jn/pd.  paoe 

in  tlie  nature  of  a  declaration OKj 

exactness  required (5H> 

must  state  a  tenancy 617,  618 

must  admit  taking 616 

must  sufficiently  justify  taking 616,  617 

pleas  to,  like  pleas  to  a  declaration 619 

plea  of  set-off  not  allowed 61  i) 


B. 

BAILEE, 

rights  and  authority  of 107,  293 

may  have  right  of  possession  against  owner  117,118 

has  an  interest  which  may  be  sold  on  execution 107 

when  he  may  sustain  replevin 107,  et  seq.,  295.  525,  529 

when  may  sustain  replevin  against  owner 117 

sale  by,  without  authority,  void 291 

pledging  goods  witiiout  autliority,  void 21(6 

selling  goods  in  payment  of  his  own  debt   21)3-295 

general  business  of — wlien  notice  of  his  authority 293 

•wrongful  sale  by,  conveys  no  title 293,  295 

selling  for  less  price  titan  authorized  does  not  avoid  sale 297 

setting  up  ownership  forfeits  liis  right  to  demand 3-10 

converting  property  not  entitled  to  demand 331 

refusal  to  deliver  by,  must  state  the  true  grounds 345,  346 

for  a  particular  purpose  cannot  use  for  another 291,  292 

when  not  bound  to  incur  hazard  of  a  suit 678 

of  goods  wrongfully  taken,  may  surrender  to  true  owner.  293-295 

should  notify  owner  of  an  adverse  claim 678 

recovers  tiie  full  value  295 

bailee  not  liable,  after  tiie  goods  have  i)assed  from  his  pos- 
session    294,  345 

no  trust  attends  the  goods  in   the  liands  of  one  wiio,  upon 

bailee's  death,  succeeds  to  his  position 295 

wool  delivered  to  be  woven,  and  the  cloth  returned,  bailor 

may  replevy 73 

BANKRUPT, 

assignee  of,  entitled  to  goods 110 

lias  title  against  all  but  his  assignee 1 1'> 

BILL  OF  LAI)IN(i, 

transfer  <jf,  wlicii  Mini<ient  to  transfer  title  to  goods 167 

ucconipanied  by  draft.  <-onsiKnor  must  jMiy  dnift 107 

transf<T  by,  may  be  explained ....      107 

BONA  FIDE  PIJKCHASKK, 

when  proteet^Ml 73.  299,  3(H>,  314 

purcliJiserof  grain  protm'teduguiiist  morlgngo  of  the  growing 

crop an.  315 

otlmrwiso,  if  ho  have  notice  of  the  identity 315 


700  INDEX. 

BONA  FIDE  PVRCRXfiETl— Continued.  page 
one   wlio   lends   money   on  negotiable  paper,   even  though 

stolen,  protected 315,  316 

though  he  knows  of  suspicious  circumstances 316 

promissory  note,  payable  to  one.  but  in  fact  the  property  of 
another,  possession  surreptitiously  obtained  by  the  payee, 

bona  fide  purchaser  not  protected   316 

80  of  a  wareliouse  receipt 316 

corporate  stock  not  negotiable 316 

purchaser  of  bill  of  lading,  indorsed  generally,  protected. . . .  316 
not  where  possession  is  obtained  witiiout  the  owner's 

consent 316 

purchaser  from  thief  or  trespasser,  not  protected 315 

nor  purchaser  from  one  having  no  title  or  authority 315 

even  though  in  possession  by  owner's  consent 315 

nor  purchaser  from  conditional  vendee 315 

nor  where   the  goods  were  sold  to  one  person,  the 
seller,  as  the  buyer  knew,  supposing  the  purchase 

to  be  for  another 315 

nor  the  purchaser  of  a  mere  equity 315 

one  who  takes  the  thing  in  pa^'ment  of  a  debt,  not  a  bona 

fide  purchaser 316 

cases  contra 316 

nor  one  who  takes  a  mortgage  to  secure  a  piecedent  debt. . .  316 

nor  one  who  purchases  at  a  sale  on  his  own  execution 316 

nor  the  slieriff  levying  an  attachment  upon  goods  which  the 

debtor  obtained  by  fraud 316 

nor  an  assignee  for  creditors 317 

nor  one  who  pays  with  notice,  though  he  bargained  without 

notice 317 

nor  one  who  purchases  at  a  gro.ssly  inadequate  price 317 

nor  one  who  gives  a  promissory  note  for  the  price 317 

nor  one  who  purposely  omits  inquiry 315 

purchaser  from  plaintiff,   pending  the  replevin,   not    pro- 
tected  235,236 

nor  purchaser  from  defendant,  who  is  in  possession 

under  a  fortiicoming  bond 236 

not  liable  in  replevin  until  reasonable  opportunity  afforded 

him  to  investigate . .  .344,  345 

the  burden  of  proof  as  to  bona  fides  of  the  purchase,  is  upon 

the  one  asserting  it 317,  589 

measure  of  damages  against  bona  fide  purchaser 479 

implied  exception  in  favor  of  bona  fide  purchaser  in  statute 

declaring  sales  by  an  insolvent,  void 315 

BOOM  COMPANY, 

statutory  lien  of 123 

not  lost  by  detention  of  an  excessive  number  of  logs.  123 
BONDS, 

vt^hich  can  be  identified  may  be  recovered  in  replevin 88,  160 


INDEX. 


701 


BOND.    See  Action  on  the  Bond. 

no  bond  required  by  conunon  law 348 

first  appearr.uce  of.  in  our  laws 17-1!> 

English  Statutes  basis  of  law  concerning,  in  tliis  country. 348.  349 

a  prerequisite  to  delivery 350 

wealtlj  of  defendant  no  excu,se  for  not  giving 351 

permission  to  sue  as  a  pauper  does  not  excuse  giving 351 

deposit  of  money  cannot  be  accepted  in  lieu  of 365 

writ  quaslied.  when  is  not  given 350 

characteristics  of  the  contract 358,  368 

object  to  secure  slieriflf , 381 

objects  and  purposes  under  present  practice 358 

must  confornj  to  statute 352 

executed  on  .Sunday,  when  void 360,  307 

Sunday  not  counted  in  computing  time  to  give 366,  367 

how  executed 365 

by  whom,  must  be  executed 365 

by  stranger  to  suit,  for  plaintiff 365 

should  state  the  court  where  suit  is  pending 'M't^ 

must  describe  the  suit 368 

must  describe  tlie  goods 36'.> 

must  name  i)arties 3()8 

must  contain  name  of  defendant  in  suit 387,  388 

omission  to  name  defendant  a  fatal  defect  in 369 

penalty  must  be  double  tlie  value  of  tlie  goods. .....  273,  352,  ^(\0 

suit  dismissed  when  tiie  penalty  is  insufficient    :!52 

must  be  for  a  definite  sum oO'.t 

must  state  value  of  goods 369 

value  of  various  articles  stated  in  gross  in  895 

two  securities  required 348,  349 

to  whom  pay;d)le 362 

made  to  sheriff  or  defendant 348,  349 

when  right  of  action  accrues  upon 3S2 

construction  of,  in  suit  upon 303,  364 

intent  of  parties  will  control 381 

clerical  errors  in,  will  not  vitiate 387,  388 

defendant  cannot  plead  that  it  was  f(jr  ease  and  favor. . .  .  385,  386 

ambiguous  words,  how  construed   ".IHT,  3S8 

8uit  <»n — irregularities  in  issuing  the  writ  will  not  defeat. . . .     391 
variance  in  descri|ition  from  affidavit  no  defense  to  suit  on.  .     394 

non-<-onfi)rmaiice  to  the  statute  docs  not  vitiate !JH5,  380 

failure  of  defendant  to  take  advantage  of  ilefe<'ts  in,  d<H»s 

iHjt  defeat  him  in  suit  on 3M0,  3H7 

valid,  though  given  after  the  writ  was  served 3H7,  3M8 

cunditiofied  to  be  void,  if  the  obligor  sliould  not  pay,  will  not 

defeat ■ :W7.  .'WH 

in  le.HM  than  double  the  value  nf  the    (umii.i  t  v.  not  thereforM 

void .  3H0,  :{87 


702  INDEX. 

PAGE 

BO'iHD -Contimted. 

error  in  recitals  does  not  vitiate 385,  386 

wlieii   the  signature  of  one   of  tlie    securities  is  a  forgery, 

may  be  enforced  against  the  otlier 386,  387 

with  one  security,  may  be  enforced 386,  387 

defective  as  a  statutory,  may  be  good  as  a  voluntary  obliga- 
tion      363 

defendant  may  waive  defects  in,  and  accept  386,  387,  391 

failure  to  take,  does  not  affect  jurisdiction  of  the  court 368 

duty  of  plaintiff  to  prepare  and  tender 362 

officer  not  required  to  make  out 362 

duty  of  officer  to  take 273,  348 

coroner  must  take,  when 353 

clerk,  not  slierilT,  takes  in  some  States 273 

officer  must  see  it  properly*  executed 368 

officer  liable  for  delivering  goods  witlxout 351 ,  352 

liable  for  tlie  sufficiency  of  the  securities 348,  349 

defendant  may  except  to  form  of  securities 359 

not  necessary  to  trial 352,  353 

not  necessary,  unless  plaintiff  asks  deliver}- 358 

supplies  the  place  of  property  distrained 422 

conditions  of 19,348,349,358 

conditions  of,  separate  and  independent 369,  370 

failure  to  keep  all.  a  breach  of 369,  370 

part  of  the  conditions  may  be  void,  and  others  valid 369,  370 

condition  to  prosecute  without  dela}',  how  broken 370 

condition  to  prosecute  with  effect 370,  371 

breach  of  condition  to  prosecute  with  effect 372 

condition  to  pay  such  damages  as  sliall  be  adjudged 383 

condition  to  return,  effect  of 373,  374 

failure  to  return  when  ordered,  a  breat^h  of . .    376-378 

requires  the  return  of  the  identical  goods 374 

requires  return  of  goods  in  as  good  order  as  when  taken . .  374,  375 
award  of  return  not  necessary  to  a  breach  of  other  conditions.     383 

actual  return  a  compliance  with  that  condition 381 

what  is  a  breach  of  373,  374 

effect  of  death  of  party  on  conditions 373 

rights  of  securities  on 382 

securities  liable  only  for  the  letter  of  their  contract 383 

securities  in,  not  discharged  by  settlement 385 

securities  on,  not  liable  for  costs,  unless  so  provided  384 

securities  bound  by  the  result  of  the  suit 384 

intent  of  makers  will  govern 387,  388 

securities  on,  have  a  right  to  return  the  goods 382 

substitution  of  new,  will  discharge  securities  in  old 391 

assignable  to  defendant 348,  349 

parlies  to  suit  on.  cannot  discliarge  it  to  the  injury  of  sheriff    396 
suit  on,  where  the  merits  are  not  tried  in  replevin  suit 392 


INDEX.  703 

BOKD— Continued.  page 

judgment  for  return  not  essential  to  create  liability  on 38;J 

owuersliip  of  property  cannot  be  questioned  in  suit  on,  when 

settled  in  replevin  suit  : 392 

only  relates  to  claims  in  the  suit  in  which  it  is  given 379,  380 

summary  proceedings  upon 388 

release  of.  discharges  sheriff S'M\ 

proceedings  in  replevin  suit  essential  to  suit  upon 381) 

securities  in.  not  bound  by  submission  to  arbitration  without 

tlieir  consent 385 

security  in,  bound  bj-  acts  of  principal 384 

securities  liable  for  what  their  principal  is  lawfully  adjudged 

to  do 38-2 

suit  on,  value  and  interest  allowed  on 4(55 

suit  on,  when  value  is  given  as  damages 397 

effect  on.  of  submission  to  arbitration 678 

actual  delivery  of  goods  precedes  liability  on 380 

any  material  alteration  avoids  it   384 

court  cannot  vary  or  enlarge  conditions 38'3 

assignment  of  breaches  in  suit  on 389 

what  is  a  sufficient  assignment  of  breaches 389 

defenses  in  suit  on,  whicli  should  be  made  in  replevin  suit  392,  5J93 

debt  a  proper  form  of  action  on 389 

what  facts  material  to  be  set  up  in  suit  on 389,  390 

defenses  to  suit  on 363,  304,  393 

damages  on,  how  assessed 396,  397 

compensation  the  rule  for  damages  on 396,  397 

value  stated  in,  how  far  binding 395 

defects  in,  how  and  wlien  taken  advantage  of 352,  368 

(  technical  defenses  to,  not  favored 385,  386 

writ  issuing  williout  aftidavit  no  defense  to  suit  on 394 

proceedings  in  replevin  suit  essential  to  suit  on 3S9 

right  of  action  accrues  upon  failure  to  keep  any  of  tlie  con- 

'  ditions 382 

judgment  on,  form  of 396.  397 

sheriff's  return  must  show  taking  of 42! 

limitation  to  suit  on 398 

partner  canncjt  sign  his  co-partner's  name 366,  367 

amendeil,  may  be  filed 366,  367 

lost  from  files,  how  supplied 390 

l(«t  by  oflJ<"er.  damages  for 199 

guardian  <'X»'cuting  lialile  personally 3H7 

by  defendant  — 

when  defendant  may  give,  and  r»'tain  I  In'  pinjM'rty.       ilVl 

Khcriff  should  allow  re;iHonabli<  time  for 278,  271> 

not  re^juired  where  delivery  in  not  donninded  at  the  institu- 

ti«»n  of  Huit    .    3.58 

plaintiff  not  un<lpr  duty  to  give  Inind.  where  only  part  of  tlio 

gfHxlH  are  found 430 


704  INDEX. 

BOND — Continxied.  paok 

voluntary,  valid,  though  conditions  more  onerous  tlian  those 

of  the  statute 364 

unless  in  contravt-ntiuii  of  public   policy,  or  some 

statutory  provision 364 

naming  a  stranger  as  principal,  and  j)laintitf  as  surety,  suffi- 
cient      364 

though  it  omits  the  words  "  witliout  delay  and  with  ef- 
fect ;  "  or  the  condition  for  return  ;  or  exceeds  the  amount 
required  by  statute  ;  or  is  payable  to  the  sheriff  instead 
of  plaintiff ;  or  is  executed  bj'  only  one  of  several  plain- 
tiffs ;  or  gives  a  false  date  ;  or  a  misnomer  of  the  court. .     364 

or  contains  no  description  of  the  goods 369 

or  is  without  date 366 

need  not  be  subscribed  by  plaiutilT  ;  nor  bN'  all  the  plaintiffs.     365 

nor  b}'  the  sureties  with  their  own  hands 365 

signature  to  a  blank,  thougli  with  intent  that  a  bond  should 

be  written  over  it,  imposes  no  liabilitj'   365,  366 

binds  those  who  subscribed  thougli  not  sealed 366 

though  not  signed  bj'  princii)al,  binds  tiie  surety   366 

and,  it  seems,  tiie  plaintiff  also 366 

binds  one  surety  subscribing,  though  two  are  named  in  the 

body 366 

binds  the  surety,  although  he  only  make  his  mark 366 

bond  without  the  corporate  seal,  or  name  subscribed,  does 

not  bind  the  corporation 366 

the  condition  merely,  without  the  obligatory  part,  not  suffi- 
cient          366 

when  defective,  a  new  bond  may  be  required 366,  685 

execution  of  the  new  bond  does  not  discharge  the  sureties  in 

the  original 366 

amendment,  allowed  only  by  .statute 366,  367 

a  surety  is  not  to  be  discharged,  except  upon  notice  to  all 

parties, "and  the  other  sureties 367 

how  far  bond  stands  in  place  of  tlie  goods  236,  422,  665 

sheriff  liable  if  he  executes  the  writ,  without  taking  bond  ; 
or  takes  onh'  one  surety,  where  the  statute  requires  more 

than  one  ;  or  fails  to  return  the  bond 361 

sheriff,  in  determining  the  value  of  the  goods,  acts  for  both 

parties 360,  361 

his  duties  and  powers,  in  ascertaining  the  value  of 
the  goods,  and  determining  the  sufficiency  of  the 

sureties 360,  361 

in  Pennsylvania,  liable  for  the  sufficiency  of  the  sure- 
ties at  the  determination  of  the  replevin 361 

in  Illinois,  only  that  they  shall  be  .solvent  and  suffi- 
cient, when  accepted 361 

when  objections  to   the   sufficiency  of  the  bond   must  be 

made 359,368 


INDEX. 


ror» 


BO'SD— Continued. 

objections  waived  by  going  to  trial 368 

sureties  excepted  to,  and  failing  to  justify,  are  exonerated.. .     339 

otherwise  in  New  York 359 

waiver  of  justification 359 

if  sureties  insufficient,  a  new  bond  may  be  required  ;  and  in 

default,  tile  court  may  order  the  goods  returned    361 

failure  to  give  new  bond  not  a  discontinuance 3G1 

action  for  taking  insufficient  bond  ;  plaintiffs  in 3G1,  362 

pleadings  and  recovery,  in  such  action 363 

sufficiency  of  sureties  may  be  assailed,  where,  by  fraudulent 
practice,  exceptions  indue  time,  in  the  action  of  replevin 

were  prevented 359 

officer  not  concluded  in  such  action  by  the  judgment  in  re- 
plevin       363 

the  condition  to  dulj'  prosecute  does  not  require  a  successful 

prosecution 371 

plaintiff  entitled  to  only  nominal  damages  for  breach  of  this 

condition,  unless  actual  damages  shown 371 

condition  to   pay  "  such  sums  as  for  any  cause  may  be  re- 
covered," covers  the  value  of  the  goods 383 

and  the  damages  and  costs,  though  there  was  no 

judgment  for  return 408,  410,  413 

but  not  damages,  unless  there  was  a  judgment  for 

damages 413 

even  tliougii  by  accidental  circumstances,  there  can 

be  no  judgment 410 

condition  to  deliver  the  goods,  "  if  delivery  be  adjudged,  and 
pay  such   sums  as  may  be  recovered,"  gives  no   action 

until  final  judgment  in  the  replevin.. 3s3 

condition   to  return  "if  adjudged"   imports,  by  a  court  of 

competent  jurisdiction 383 

sureties  bound  where  the  judgment  is  the  result  of  a  com- 
promise   384 

bound  for  the  conduct  of  eacli  of  the  principals 350 

BORROWER. 

cannot  Sft  up  title  against  lendt-r lOli,  331 

demand  on,  when  neces-sary 331 

ciaiiMing  in  defiance  of  lender  IH  a  conversion 331 

BREACH, 

a.ssignment  of  in  suit  on  lM)nd  3^11 

wliat  is  a  sufficient  asHignment  of 389 

to  pros»-»iite  with  eff«Mt   870-373 

to  prosfcute  without  delay    370 

to  make  return  if  return  \ni  ordered 873,  374 

identical  j^ouds  muHl  In*  returned 374 

actual  delivery  precedes  breach  of !*80 

judgment  for  return  is 370,  3TH 

45 


^OQ  INDEX. 

PAGE 

BROKER, 

not  required  to  deliver  the  identical  shares  received  or  con- 
tracted for  ;  only  the  same  number  in  the  same  stock. . . .     330 

BUILDINGS. 

prima  facie  real  estate 89,  90 

placed  on  another's  land  by  mistake 96 

wlien  replevin  lies  for 95,  96 

BURDEN  OF  PROOF, 

on  plaintiff  upon  question  of  return 440,  441,  563,  564 

where  defendant  does  not  traverse  plaintifif's  right  upon  a 

plea  of  justification 568 

C. 

CARRIER. 

cannot  show  title  in  a  third  party  against  consignee 110 

goods  taken  from  on  writ  against  owner  110 

liable  for  goods  wrongfully  taken  and  committed  to  his  care  296 

goods  taken  from,  owner  may  sustain  replevin 126 

has  lien  on  goods  transported 337 

has  no  lien  on  goods  wrongfully  in  his  care 296 

CASTLE, 

does  not  protect  goods  of  another 272 

CEPIT, 

replevin  in 48 

CEPIT  IN  ALIO  LOCO. 

plea  of,  form  and  effect  of 607 

CHANGE  OF  FORM  OF  GOODS, 

effect  of  on  parties'  rights 176  et  seq. 

rule  of  the  civil  law  in  such  case 1 76 

by  agreement 182 

does  not  change  title 177,  178,  480 

destroying  identity,  replevin  does  not  lie 177 

by  taker  in  good  faith,  how  affecting  question  of  damages  . .  617 

trespasser  enhancing  value,  effect  of 178 

wrought  by  an  innocent  holder 177 

owner  must  reclaim  before  greatly  enhanced 179 

by  trespasser,  effect  of  on  question  of  damages 479,  509,  510 

does  not  destroy  title 178,  480 

owner  of  stolen  goods  cannot  replevy  those  for  which  they 

have  been  exclianged 178 

nor  the  owners  of  stolen  money,  the  goods  purchased  there- 
with by  the  thief 178 

innocent  purchaser  liable  for  the  increased  value 178 

whetlier  trespasser  allowed  for  his  labor  in  improving  the 

tiling 116,  178,  181,  479 

CHANGING  MARKS  TO  PRODUCE  CONFUSION, 

effect  of,  innocent  party  may  take  all. . .   172 


INDEX.  7Q7 

CHATTELS,  ''^°* 

what  are  chattels 87 

recoverable  in  replevin 21 

title  to,  tried  in  replevin 39 

severed  from  real  estate,  after  ejectment 96 

attached  to  real  estate — 

when  they  become  real  estate  96 

replevin  does  not  lie  for 90 

trade  fixtures  may  be 92 

actual  severance  from  realty  not  necessary  to  constitute 93 

fixed  to  land  of  another 96 

of  another  taken  and  fixed  to  land 96 

timber  taken  and  built  into  a  house 182 

crops  harvested  after  ejectment 99  ^^  seq. 

servered  from  real  estate — 

by  a  trespasser,  owner  can  recover 97 

by  one  in  possession,  holding  color  of  title 97  e^  srq. 

title  to  real  estate  evidence  of  title 9(5,  97 

when  a  mortgagee  may  recover lOl  et  siq. 

holder  of  colorable  titles  cannot  recover 97.  98 

when  finder  of  can  sustain  replevin 114  ef  seq. 

vrrit  does  not  authorize  severance  of  from  real  estate 275 

when  sheriff  may  sever  from  real  estate 90,  91 

whether  articles  are,  tried  in  replevin 90,  91  et  sty. 

CHATTEL  MORTGAGE, 

distinction  between,  and  pledge 184,  1S5 

an  absolute  conveyance  of  title 184 

mortgager  has  an  interest  which  may  be  seized  and  sold,.  184,  1H.5 

insecurity  clause  in,  effect  of 184,  185 

rights  of  niortgagee  under 185,  186 

sale  by  mortgagor,  mortgagee  may  replevin 185,    186 

what  is  the  subject  of  mortgage 186 

future  product  of  particular  lands 186 

lumber  to  be  manufactureil  at  a  particular  mill 187 

tenants  interest  in  crojis,  before  division 1S7 

not  goods  to  be  afterwards  ac(iuired,  unless  the  pro- 
duct of  s<jmething  already  owned   by  the  mort- 

RfiKor 187 

mortgage  of  goods  already  pledged,  effect 187 

mortgagor's  riglit 186 

entitled  to  possession  until  forfeiture 209 

may  w-II  or  mortgage 186 

his  interest  levialde 201> 

but  in  Htiiuv  juriwliotions,  only  by  Htutute 2(>9 

and    not   uft^r     default,   and    iMNtm'MMion    by    mort- 

gag.Mj IWJ.  209 

nature   of  moitk'.itree'n  inteiesl  :  in   iM>sHeNsii»n.  has  the  Ii«k'iil 

title ...  .  \^(\ 


708  INDEX. 

PAGE 

CHATTEL  MORTGAGE— Contiinied. 

aiul  after  default,  an  absolute  title 186 

what  incidents  pass  by  mortgage 186 

parties  to  mortgage 187 

execution   and    acceptance  :  acceptance  essential,   and  not 

presumed 191 

mortgage  recorded  witliout  mortgagee's  knowledge,  and  mort- 
gagor forges  the  name  of  mortgagee,  he  cannot  impeach 

the  genuineness  of  the  paper. ...    191 

delivery  to  the  creditor  effectual,  though  the  trustee  in  the 

mortgagee  repudiates  it 191 

irregular   instruments  :  lease  by  which  landlord  retains  the 
crop,  agreeing  to  deliver  to  tenant  a  proportion,  is  not  a 

mortgage 187 

nor  is  an  agreement  that  chattels  shall  "  stand  good  " 

for  a  particular  debt 187 

nor  a  writing,  i-eserving  a  lien  on  goods  sold 187 

nor  a  promissory   note,  wliich  pledges  goods,  with 

power  of  sale 188 

nor  a  writing  attempting  to  create  an  agricultural 

lien,  but  not  complying  with  the  statute 188 

nor  a  writing  that  particular  lumber  to  be  manufac- 
tured,   '"shall    stand    subject"   to  an    amount 

named 188 

a  writing  transferring  a  particular  crop,  to  be  void  if  a  par- 
ticular debt  is  discharged,  and  authorizing  the  creditor 

to  sell  tlie  goods  upon  default,  is 187,  188 

or  a  bill  of  sale  absolute,  intended  to  be  for  se- 
curity       188 

or  an  agreement  of  a  merchant  to  hold  his  stock  on 
consignment  for  sale  for  account  of  a  particular 
creditor,  and  that  the  creditor  may  take  posses- 
sion, etc 194 

or  any  writing  which  hj-pothecates  particular  goods, 

to  secure  performance  of  an  act 188 

bill  of  sale  for  indemnity  providing  that  vendor  sliall  retain 
and  sell  the  goods,  and  apply  proceeds  to  the  debt,  will 

not  sustain  replevin   190 

senior  and  junior  mortgage:  junior  mortgagee  discharging 

the  senior  mortgage,  is  entitled  to  an  assignment...       188 
his  rights  not  affected  by  agreements  of  the  senior 

mortgagee 188 

nor  does  he  have  advantage  of  representations  of  the 

mortgagor  made  in  obtaining  the  loan 188 

may  redeem  from  the  senior  mortgagee  as  assignee 

of  mortgagor 188 

statute  allowing  redemption,  by  giving  notice  "at  the  time 

of  the  sale,"  not  to  be  taken  literally 188 


INDEX.  709 

_  PAGK 

CHATTEL  MORTGAGE— Co/(^in»('d. 

description  of  tlie  goods  :  descriptions  held  sufficient 204-207 

descriptions  held  insufficient 205 

parol  evidence  in  aid  of  description 205 

inconsistencies  in  description  do  not  always  invalidate 206 

nor  does  a  cliange  in  the  description,  e.  g.,  the  color 

of  an  animal 207 

the  maxim /a/sa  demonstrutio  etc.  applies  to  a  chattel  mort- 
gage       206 

description  of  the  debt :  failure  to  describe  with  particu- 
larity subjects  the  mortgage  to  suspicion 203 

mortgage  for  a  sum,  as  to  a  large  part  of  which  mortgagee 

liable  merely  ;is  security,  not  a  fraudulent  exaggeration.     203 
authentication,  acknowledgment  ;  ma}-  be  taken  by  justice 

of  the  peace  anywhere  in  his  count}' 191 

what  certificate  sufficient ...     191 

memorandum  in  docket 191,  193 

mortgage  without  the  authentication   required  by  statute, 

will  not  sustain  replevin  even  against  a  stranger 192 

mortgage  of  corporation  authorized  by  directors,  valid  if 
afterwards  delivered,  tiiougli  bearing  date  prior  to  au- 
thorization         1 92 

when  official  character  of  the  officer  presumed 192 

void  in  part,  void  in  toto 192 

record  notice,  precedence  :  claimant  under  a  chattel  mort 
gage  against  officer    levj'ing  under    execution  against 

the  mortgagor,  must  show  record 192 

actual  notice  supplies  absence  of  the  statutory  attestation. . .     192 
officer  representing  creditors,  must  prove  absence  of  notice 

to  creditors 192 

mortgage  valid  against  mortgagor  though  not  recorded. .. .     192 

and  against  the  widow  of  deceased  mortgagor 192 

actual  notice  does  not  affect  a  .subsequent  mortgagee  wliere 
senior  mortgagee  omits  the  notice  of  extension  without 

wjjich,  by  statute  tiio  mortgage  is  void 192 

record  affords  notice  to  all  the  world 193,  195 

deix>8it  for  record,  e<|uiva!ent  to  record 193 

mortgage  nf»t  recorded  invalid  as  against  a  purchaser,  though 

ho  luiH  mutual  notice i 193 

caseH — ruiiira 194 

recitaU  of  the  mortgage  effect  tlie  mortgagee,  tliough  he  fail 

to  read  lliein   ,...      193 

mortgaged  r>hattelH  Hold  by  mortgagor,  and  the  prooeedHpaid 
to   his  creditor   in  another  county,  crediU>r  cannot   be 

held  as  truMteo 1 93 

notice  of  mortgage  to  a  creditor.  alFecU*  the  officer  who  levies 

llie  creditor'a  execution 194 


710  INDEX. 

PAGE 

CHATTEL  UORTQ AGE— Contimied. 

junior  mortgagee  Miay  assail  senior  mortgage   for  want  of 

record,  tliongli  his  own  mortgage  be  not  recorded  194 

unrecorded  mortgage  ineffective 194 

as  to  receiver  of  mortgagor,  or  a  judgment  creditor,  or  a 

junior  mortgagee  without  notice 194 

though  the  omission  to  record  be  mere  inadvertence.     194 
but  omission  to  record  not  conclusive  that  mortgage 

is  fraudulent 195 

record  not  authorized  by  law,  not  notice 195 

nor  the   recortl   of  a  mortgage   not  authenticatedas  re- 
quired by  statute. 195 

record  of  mortgage  by  A.  W.  D.  not   notice  that  J.  W.  D. 

executed  it 195 

where  goods  are  left  in  possession  of  the  vendor,  a  mort- 
gage  by  the  purchaser  not   notice  to  subsequent   pur- 

chers  from  vendor 194 

mistakes  in  record,  if  not  misleading,  are  not  fatal 193 

effect  of  record  in  wrong  book 194,  195 

statute  requiring  an  affidavit  from  mortgagee,  showing  his 
interest,    has  no  application   where  mortgagee  assumes 

possession 193 

where  the  statute  requires  a  change  of  possession,  construc- 
tive possession  will  not  suffice 193 

several  mortgages  of  the  same  party,  upon  the  same  goods,  to 

be  satisfied  in  the  order  to  record 194 

judgment  in  part  for  a  debt  accruing  before  the  execution  of 
an  unrecorded  mortgage,  unen forcible  against  the  mort- 
gagee      195 

renewal ;  separate  affidavits  of  mortgagor  and  mortgagee, 

to  be  taken  together 195 

fractions  of  a  day  not  to  be  considered 195 

days  of  grace  to  be  counted  195 

goods  subsequently  acquired,  mortgage  does  not  bind  unless 

possession  delivered  before  other  liens  attach 196 

mortgagees  right,  cognizable  only  in  equity 196 

otherwise  in  Michigan,  and  Mississippi 196 

material  piuchased  to  supply  natural  deterioration  of  a 
manufacturing  plant,  and  so  mingled   with  the  original 

as  not  to  be  distinguished,  passes  by  the  mortgage 196 

and  things  manufactured  from  mortgaged  material, 

where  so  expresslj'  provided  by  the  mortgage. . .     196 
and  goods  added  to  a  merchant's  stock,  where  the 
mortgage  so  provides,  and  mortgagee  obtains  pos- 
session before  rights  of  third  persons  intervene. .     197 
mortgagee  in  possession,  with  power  to  sell  ;  if  by  any  ar- 
rangement between  mortgagor  and  mortgagee  mortgagor 


INDEX.  711 

TAOK 

CHATTEL  MORTGAGE— Continued. 

of   meichandise  continues  selling  for  his  own   benefit, 

the  mortgage  is  void  as  to  creditors 197 

only  as  to  those  who  become  such  after  its  execution.     197 

in  some  states  good  faith  may  be  sliown 197 

mortgage  of  things  capable  of  use,  witliout  sale,  and  which 
are  segregated    from  the   merchant's  stock,   mortgage 

valid 197 

so  where  the  mortgage  provides  that  mortgagor  "may  re- 
tain and  use"  tlie  mortgaged  merchandise,  but  that  until 

full  payment,  the  mortgagor  shall  not  sell 197.  198 

mortgage  of  merchandise  and  other  cliattels,  the  mortgagor 
remaining  in  possession,  selling  and  retaining  the  pro- 
ceeds, mortgage  void  as  to  all 198 

Csises— Contra 198 

mortgage  of  dairy  stock,  kept  for  permanent  use,  and  sale  of 
part  not  consented  to  by  the  mortgagee,  the  case  is  not 

witliin  the  rule 198 

power  to  sell  in  the  mortgagor,  implied,  where  express  au- 
thority is  given  to  substitute  other  things  for  the  mort- 
gaged chattels 198 

not  where  the  mortgage  is  of  a  .saw-mill,  and  provides 
tliat  parts  substituted  to  supply  breakage  shall  be 

"  subject  to  the  mortgage  " 198 

provision  that  the  mortgagor  sliall  sell  and  apply  the  pro- 
ceeds, less  necessary  expense,  to   the  mortgage  debt, 

mortgage  is  valid 198 

so,  where  there  is  an  agreement  that  the  stock  sliall 
be  kept  up  ;  or,  that  the  mortgagor  shall  sell  only 
to  mortgagee,  or  in  the  name  of  mortgagee,  and 
tlie   proceeds   to   be   paid    by    the  purchaser,  to 

aj)ply  on  the  mortgage  debt 198 

power  in  mortgagee  to  exchange  does  not  warrant  a  .sale 199 

when  mortgagor  reU'iins  possession,  contrary  U>  the  terms 
of  the  mortgage,  e.  g.  where  provision  is  made  that  he 
may  retain  possession  until  default,  and  he  is  left  in  jxis- 
SBBsion  after  default,  the   mortgage  is  fraudulent  lus  to 

creditors '^^ 

though   mortgagee   retains  posses-sion    for  only  one 

day  after  default ^^^ 

but  possession  need  not  be  tak»'n  on  Sunday 199 

and  if  mortgage.  a<ting  with  diligence.  Invoko 
all    the  rein««dieH  of    the    law.    ho  is  i)rotecleil. 

though  he  fail  to  ul.tuiii   |>oHH««sHion 199 

BO,  if  iK)«H.'HHir)n  iHtakon.  anddelivonid  to  a  custodian, 
though  the   g<)<><ln   remain   on    the   mortgagor  h 

prennneH  '"" 

■tatute  that  a   mortgage,  powwHHion    romuining    with    th« 


^12  INDEX. 

PAGE 

CHATTEL  UORTGAGE-Coutimted. 

mortgagor,  sliall  be  valid  until  the  maturity  of  the  debt, 
not  exceeding  two  years,  a  mortgage  securing  several 
notes,  some  maturing  within  two  years,  and  others  after 
two  years,  is  void  as  against  creditors,  even  as  to  those 

notes  maturing  within  two  years 199 

even   tliough  the  mortgagee,  acting  under  the  in- 
security clause,    assumes  possession   within  two 

years 199 

there  must  be  an  actual  and  continued  change  of  possession  ; 

mere  ostensible  change  will  not  suflfice 200 

in  Nebraska,  retention  of  possession  by  mortgagor  after  de- 
fault, is  only   evidence   of    fraud  ;  good  faith   may   be 

shown 200 

where  possession  is  essential  to  the  validity  of  a  mortgage, 
and  remains  with  the  mortgagor,  the  mortgage  in  in- 
operative, even  as  against  the  receiver  in  insolvency 200 

provision  that  mortgagee  may  assume  possession  before 
maturity,  if  he  deem  himself  insecure,  does  not  authorize 

arbitrary  action  ;  he  must  act  in  good  faith 201,  202 

^  must  have  reasonable  ground  to  apprehend  loss 202 

and  some  cause  not  existing  at  date  of  mortgage.. .  .     202 
mortgagee  may  replevy  if  the  goods  are  taken  under  a  distress 
warrant,  or  other  process  against  mortgagor,  or  mort- 
gagor has  sold  the  goods,  or  made  a  second  mortgage. . . .     202 
circumstances  justifying  assumption   of  possession  by  the 

mortgagor 203 

provision  in  manuscript  that  mortgagor  may  "handle  the 
goods  in  a  legitimate  and  mercantile  way,"  prevails  over 
the  printed  provision  that  mortgagee  may  assume  pos- 
session "  whenever  he  shall  choose  " 202.  203 

purchase  money  mortgage  :  takes  precedence  of  an  execu- 
tion already  issued 189 

not  where  long  delay  occurs  in  recording,  and  in  the 

meantime  execution  issues  189 

takes  precedence  of  purchase  with  notice,  or  without 

consideration 189 

or,  purchase  with  intent  to  defeat  vendor's  claim. .  .      189 
by  tenant,  takes  precedence   of  landlord's  lien    for 

rent,  afterwards  accruing 189,  191 

mortgage  to  secure   several   promissory    notes,  those    first 

maturing  must  first  be  paid  from  the  proceeds 189 

mortgage  for  indemnity  :  when  may  be  foreclosed 189 

mortgagee  may  re|)levy  the  goods,  witiiout  first  pay- 
ing the  debt 189 

how  foreclosure  is  to  be  had  by  the  sureties,  of  a 

mortgage  to  the  creditor 189 


INDEX.  713 

PAOK 

CHATTEL  MORTGAGE— Confinwed. 

mortgage  for  indemnity,  maturing  with  the  debt,  mortgagee 

must  at  once  assume  possession 189 

bill  of  sale  for  indemnity,  providing  that  vendor  shall  retain 
the  goods,  sell  them,  and  apply  the  proceeds  in  discharge 

of  tlie  debt,  will  not  sustain  replevin 190 

mortgage  to  secure  future  advances :  affects  one  who  pur- 
chase with  notice 1^0 

cannot  be  extended    to  cover  advances  not  cove- 
nanted for 190 

to     secure     plantation     su])plies,     and     mortgagor 
abandons   the  plantation,  furtlier  advances   are 

excused 190 

to  secure   rent   subsequently   maturing,   takes  pre- 
cedence of  a  subsequent  sale  by  the  mortgagur.  .     190 
mortgage  in  one  state  of  chattels  there,  conforming  to  its 

laws,  binds  the  goods  when  carried  into  another  state. . .     190 

cases — contra ^"^^ 

mortgage  by  one  partner  binds  the  interests  of  both,  if  the 

other  assents ^^" 

but  is  void,  as  against  partnership  creditors 190 

so,  a  mortgage  by  all  the  partners,  to  secure  the  debt 

of  one 191 

surviving  i)artner  entitled  to  pos.session  as  against 

the  mortgagee ^91 

mortgagee  may  replevy  the  goods  immediately  upon  any  de- 
fault      69 

if  any  part  of  the  debt  is  unpaid 207 

from  purchaser  on  execution  against  mortgagor 207 

may  enter  upon  mortgagor's  premises,  to  seize  the 

goods '~'^ ' 

is  entitled  to  posses.sion,  as   against  all  wlio  claim 

under  the  in(trtg.ig<>r 207 

as  against  a  receiver  of  the  mortgagor's  estate... .  207,  208 

full  payment  of  th.-   di-bt  bars  the  mortgagor's  right 207 

but  not  partial  payna-nt 207 

where  the  mortgage  provides  that  mortgagor  sliall  retain 
the  gofjds  until  default,  the  mortgagee  to  n-covur  them 
before  the  niaturity  of  the  debt.  mu.st  show  a  breach  of 

8om<'  other  condition 208 

sale  by  a  mortgagor,  free  of  tlie  mortgage,  entitU-H  the  mort- 
gagee to  his  action *"* 

mortgagee  may  n«pl«'vy  a  portion  of  the  KoodH.  so  conferring 

juriwiiction  uiMin  ju-stice  of  the  ikmioo 208 

mortgagee'K  noswiHMion  cureH  def»>(rt  of  acknowledgniont..  '.'08,  200 

cues — contra 

cures  defect  in  the  riM'ord,  or  w  ant  of  u  record  .'OQ 

cures  all  defects  in  deHcrJption  209 


714  INDEX. 

PAOK 

CHATTEL  MORTGAGE— Continued. 

and  the  effect  of  allowing  the  mortgagor  to  remain 

in  possession,  and  sell  for  his  own  benefit 209 

assignment  of  the  debt  carries  the  mortgage 203 

assignee  may  maintain  replevin 69,  203 

not  bound  by  agreements  of  the  mortgagee,  of  which 

he  has  no  notice 203 

assignment  need  not  be  recorded 203 

effect  of  partial  assignment  of  the  debt 203,  204 

effect  of  assignment  of  the  mortgage 203 

administrator  cannot  assign  a  mortgage  given  to  the  in- 
testate for  indemnity,  without  leave  of  the  court 203 

liens  created  by  the  mortgagor  in  possession  :  inferior  to  the 

mortgage 200 

cases — contra 200,  201 

payment  of  mortgage  debt,  reinvests  mortgagor  with  prop- 
erty      211 

usury  sometimes  operates  as  payment 211 

release  or  waiver  of  mortgage  lien  :  not  effected  as  to  residue 

of  goods  by  consent  of  mortgagee  to  a  levy  on  part 210 

nor  by  consent  of  mortgagee  to  a  sale  by  the  mort- 
gagor, in  good  faith,  of  part  of  the  goods  ;  nor  by 
mortgagee    taking    possession  and  storing  the 

goods 210 

nor  by  permitting  mortgagor  to  pile  mortgaged  lum- 
ber upon   mortgagee's  premises,  for  its  better 

curing 210 

nor  by  irregularities  in  a  sale  under  the  mortgage. . .     210 
nor  by  an  intention  on  the  part  of  mortgagee  to  re- 
move the  goods  to  another  county,  contrary  to 

the  statute 210 

nor  by  payment  of  the  mortgage  debt  by  the  surety, 

the  mortgage  being  transferred  to  him 210 

nor  by  consent  by  mortgagee  of  tenant's  crop,  to  sale 
by  the  landlord,  he  satisfying  his  own  lien  there- 
from, and  rendering  the  balance  to  the  mort- 
gagee, though  the  statute  prohibits  the  sale  with- 
out tenant's  consent 210 

nor  by  taking  judgment  for  the  mortgage  debt 208 

mortgage  waived  by  attachment  of  the  goods,  by  mortgagee.     211 

cases — contra 211 

surety  in  replevin  bond  returns  the  goods  under  judgment 
of  retorno,  he  cannot  afterward  set  up  a  chattel  mort- 
gage    210,  211 

t                bankruptcy'  ;  mortgage  executed  more  than  four  months  be- 
fore, and  recorded  after,  valid 211 

mortgage  executed  within  four  months  of,  anunlaw- 
;  ful  preference 211,212 


INDEX, 


715 


CHATTEL  MORTGAGE— Continued.  ""^"^ 

so  a  mortgage  of  part  of  a  mass,  witliout  separation 

or  identification,  until  within  four  months 211 

power  of  sale  :  irrevocable 213 

only  the  mortgagee  can  exercise 213 

may  be  exercised  pending  replevin  for  the  goods 213 

mortgagee  may  enter  the  mortgagor's  premises  to  seize  the 

goods 212 

must  conduct  himself  in  a  peaceable  manner 212 

must  exercise  the  utmost  good  faith 212 

must  not  sell  at  less  tiian  reasonable  value 212 

instances  of  sales  held  unfair 212 

mortgage  of  wife's  separate  goods,   by   both  husband  and 

wife,  effectual 313 

so  of  commtinity  property 213 

CIVIL  LAW, 

rule  of  with  respect   to  effect  of  change  of   form  of  an- 
other's goods 176,  177 

CLAIM  AND  DELIVERY, 

form  of  this  action  in  many  States 447 

distinction  between,  and  replevin 447 

CLAIM  OF  LIEN. 

when  a  conversion 333 

CLAIM  OF  OWNERSHIP, 

waiver  of  demand,  when 340 

CLAIM  OF  PROPERTY  BOND, 

by  defendant,  effect  of 278,  279 

CLOTHING, 

worn  on  the  person  not  subject  to  writ  of  replevin 137 

COAL, 

dug  on  land  uf  another,  when  value  estimated 614 

COGNIZANCE, 

defined 12 

COLORABLE  TITLE  TO  REAL  F.ST  ATE, 

holiJjT  of  cannot  recover  chattels  severed 97,  9H 

COMMENCEMENT  OF  SUIT. 

date  of  writ  not  conclusive. .  .     677,  678 

COMMON  CARRIER, 

delivi-riiij^  g»»()ds  without  authority  of  consignee,  guilty  of 

con  version 39.'i 

or  delivering  to  wrong  person 295 

or,    rofuHing   to  deliver,  except  on  f»nyinont  of  nu 

exorbitant  charge   337 

BO.  if  im  put  water  into  tli<?  win»?  which  In-  <"iirri««H.  .  .     337 
not   >)f>cauHe   the  goods  have  been  atttichud  in  Huit 

uguinst  a  stranger 327 


71G  INDEX. 

PAGE 

COMPENSATION, 

the  object  in  awarding  damaRes 396,  397,  460 

rule  does  not  apply  when  taking  was  with  malice... .  462,  468,  469 
how  fixed 461,  462 

CONCEALING, 

removing  property  to  avoid  writ,  effect  of 131,  133 

CONDITIONAL  SALE, 

validity  of 213 

writing  not  necessary,  unless  required  by  statute 213 

acknowledgment  or  record,  not  necessary 213 

nor  any  formality 213 

may  be  by  word  of  mouth 213 

vendee  takes  no  title  until  payment 213,  214 

may  .sell  or  mortgage  his  right  214 

sale  of  the  whole  property  is  a  conversion 214 

purchaser  under  conditional  vendee  is  bound  by  the  condi- 
tion   214 

so  of  his  mortgagee,  or  any  one  holding  under  him. .  214 

and  may  complete  the  purchase 215 

until   breach  of  tlie   condition   vendee   has    a  leviable    in- 
terest   214 

upon  default   by   the   vendee,  vendor   may  maintained   re- 
plevin   214,312 

even  though  he  has  assigned  notes  given  for  the  pur- 
chase money 214 

even  against  an  officer  levying  process  against  pur- 
chaser   214 

or,  against  purchaser  or  pledgee  under  the  vendee 

even  though  witliout  notice,  and  in  good  faith.  .  214 

even  though  the  contract  is  silent 214 

even  though  the   thing  sold  has  been  attached  to 

realty 215 

vrhoever  succeeds  to  vendor's  interest,  has  the  same  right.. .  214 

e.  g.  his  trustee  in  bankruptcy 214 

endorsee  of  the  note  secured  by  conditional  sale.. . .  214 
not   mere  endorsee   of  the  writing,  evidencing  the 

conditional  .sale 214 

whether  demand  necessary 214,  215 

replevin  not  a  disaffirmance  of  the  sale 214 

nor  taking  judgment  for  the  price 215 

vendor  need  not  tender  what  he  has  received 214 

cases — contra 215 

additions  made  by  purchaser  cannot  be  claimed.. .    .  215 

^                 assignee  of  vendor  is  boimd  by  the  agreement 215 

and  a  wife,  purchaser,  wliose  husbaTid  has  been  sub- 
stituted   215 

tender  of  price  completes  vendee's  title 216 


ISDEt.  71- 

CONDITIONAL  SALE-Contimied.  ''^°'' 

goods  sold  on  condition  to  the  keeper  of  a  brothel,  the  price 
to  be  earned  by  bawdry,  as  the  seller  knew  ;  the  condi- 
tion cannot  be  set  up  to  defeat  execution  sale  against 
vendee     216 

CONDITIONS  OF  BOND. 

separate  and  independent 369,  370 

court  cannot  vary  or  enlarge 382 

failure  to  keep  all.  occasions  forfeiture 369,  370,  382 

if  broken,  suit  on  bond  for 348 

to  prosecute  witii  effect — 

what  is  a  breach  of 370,  372 

dismissal  by  consent? a  breach  of 372 

judgment  for   return  not  necessarj'  to  constitute  a 

breach  of 370,  371 

prosecution  m  inferior  court  not  sufficient  wherecaso 

is  appealc'l 372 

to  prosecute  without  ilelay — 

how  broken 370 

CONDITION  TO  RETURN, 

actual  delivery  precedes  liability 380 

what  is  a  breach  of 373,  374 

if  return   be  awanled— no   breach   of  this  condition  unless 

there  is  a  judgment  for  a  return 373.  374 

judgment  for  return  a  breach  of 376,  378 

actual  return  a  comphance  with 381 

securities  may  return  if  they  see  fit 382 

requires  the  return  of  the  identical  goods 374 

fulfilled  if  sheriff  seize  same  property 3^11 

duty  imposed  by  this  condition 373,  374 

performance  of  373.  374 

effect  of  tleath  <>f  party  pending  suit 373 

effect  of  death  or  destruction  of  property  upon 395 

CONFUSION, 

of  grain  of  difforent  owners 109,  170.  173  tt  seq. 

by  accident  or  mistake,  tenancy  in  common  arises 170  «7  aeq. 

does  not   produce  tenancy  in  conunon  unless  sepurntion 

is  im|M>ssible 171.173 

willful,  all  belong  to  innocent  party 170  »7  «i</. 

of  t?<»odH  of  flifferent  owners,  wliat  is 109,  170 

fraudulent,  ul!  l»elong8  to  inn«x:ent  party   .  170 

wlien  it  does  not  change  owner's  riglitH  ...    171.  173 

in  caKe  of  grain 17:1  f/  «r«/. 

CONFUSION  OF  (;OOI)S. 

one  in  charge  of  the  grKxIii  of  unothxr,  confuHin^  them  «  ith 

Ills  own,  Nuffern  thu  cuUHequc-nt  inconvunioni  •  |71 


718  INDEX. 

CONFUSION  OF  GOODS— Continued.  '^°* 

failure  of  owner  of  part  of  a  mass  to  assert  his  claim  to  an 

officer  levying,  works  an  estoppel 171 

officer  who  refuses  the  owners'  demand  unconditionally  can- 
not assert  that  the  goods  were  confused  with  those  of 

the  execution  debtor 81 

title  not  lost  by  confusion,  where  the  intermixture  is  ac- 
cidental      172 

nor  where  it  is  intentional,  if  without  wrongful  pur- 
pose      172 

nor,  where  it  is  committed  by  a  third  person 172 

nor,  in  any  case,  where  the  forfeiture  is  avoidable. . .     172 
and  where  the  goods  are  all  of  the  same  kind   quality  and 
value,  either  owner  may  take  from  the  mass  the  share  to 

which  he  is  entitled 172 

mortgagor  cannot  defeat  mortgage,  by  confusing  the  mort- 
gaged goods  with  others. 172 

CONSENT  OF  VENDOR, 

what  is,  to  a  sale 304,  et  seq. 

CONSIGNOR, 

replevin  by  against  consignee  when  latter  refuses  to  pay  draft.     167 
CONSTRUCTION, 

of  bond 363,  364,  381 

"  '  I '  promise  to  pay  " 368 

CONTINUANCE, 

ancientl)'  not  allowed  defendant 12 

CONTRACT  OF  SALE, 

does  not  vest  title   in  the  buyer  unless  the  goods  are  sepa- 
rated, or  can  be  distinguished 164 

CONVERSION, 

meaning  of  the  term 326.  327 

what  is 326,  333,  3.34 

bailee's  departure  from  the  conditions  of  the  bailment  is.  292,  333 

accidental  departure  not 292 

unautliorized  use  of  another's  chattel 292 

or  any  unlawful  interference 292,  328,  332 

particular       cases       held      exceptions       to       this 

rule 293,  329,  331,  344 

sale  of  mortgaged  cluittels  at  private  sale 292 

withliolding  from  owner  certificate  of  corporate  stock.   293 

any  tortious  taking 293 

bailee  denying  title  of  bailor 293 

merely  borrowing  the  chattel   for  temporary  use,  from  one 

"  believed  the  owner,  not  a  conversion 293 

nor  tenant's  refusal  to  clean  and  divide  the  grain,  as 

required  by  the  lease  327 

nor  carrier's  refusal  to  deliver  the  goods  committed 


INDEX.  719 

PAOK 

CONVERSION— Con  tinned. 

to  him,  where  they  have  been  attached  upon  pro- 
cess against  a  stranger 327 

nor  refusal  of  an  unreasonable  demand  337,  344 

nor  a  casual  loss  of  the  goods 327 

nor  retention  of  the  goods   by    bailee,  merely  to  in- 
vestigate, when  demanded  by  a  stranger 330 

nor    requiring   party    claiming   the  goods   to  prove 
his   right,   where   demanded  of    an    involuntary 

bailee 330 

nor  is  servant  liable  when  he  requires  an  order  froni 

his  master,  as  a  condition  of  delivering  the  goods.     330 
carrier  liable  if  he  demands  an  exorbitant  freight  as  a  con- 
dition  of  delivery 337 

creditor  not  liable  for  the  negligence  of  the  officer,  who,  at 

his  suit,  attaclied  tlie  goods 327 

collector  liable   if   he   detains   the  goods,  to  satisfy  duties, 

when  no  duties  are  d ue . ,  .      328 

landowner  liable,  wlio  unlawfully  impoiinds  live-stock 328 

and  one,  entrusted  with  negotiable  paper,  merely  to  discount 
it  or  the  like,  and  who  delivers  it   to  a  stranger,  appro- 
priates the  proceeds,  or  asserts  title 330 

demand  and  refusal  not  a  conversion 326 

presumption  of,  from  refusal  to  deliver 327 

neglect  to  deliver,  when  not 133 

an  agreement  to  take  is  not 132 

actual  control  necessary  to  constitute 32ft 

presumed  from  refusal  to  deliver 338,  339 

taking  with  owner's  consent  is  not 134 

offer  to  deliver  at  another  place  is  not 340 

when  presumed  to  take  place 338,  310 

demand  not  necessary  after 323-32.'),  340 

wliat  is,  bj'  innocent  receiver  of  stolen  goods 333,  334 

by  bailee,  of  chattels,  for  a  particular  purpose 291,  292 

damages  estimated  from  time  of 402 

CORONER, 

writ  may  be  addrcssfd  to,  when   419 

must  take  lj<jnil,  when   3r>3 

CORPORATION. 

may  bring  replevin •'>22 

CORPSE, 

replevin  does  not  lie  for .     '-.'O 

COSTS, 

of  moving  pro[>erty  not  inchnled  in  danrngeH  4HH,  4Hl> 

Hocurity  for  rannnt  Ik-  required,  whore   replevin  baud  i«  con- 
ditioned t*>  |>uy  costH ^^ 

how  apportioni'd.  uJierM  mu'M  |>»irty  prevails  in  [Mirt OHfl 

attorney'H  bill  .itnl  i-xiwntM^s  of  prepariition  4^7.  rtM7 


720  INDEX. 

PAOX 

COUNTERCLAIM.     See  Set-off. 
COUNT  IN  TROVER. 

purely  statutoiy 553 

COURTS, 

power  to  control  their  officers 685 

and  protect  the  rights  of  all  parties 685 

not   in  a   manner   inconsistent  with    the  statute 

regulating  actions  by  poor  persons 685 

may  not  impound  negotiable  instruments,  the  title  to  which 

is  in  question 686 

appellate,  may  compel  surrender   of  the   goods,  where  effect 
of  the  appeal  is  to  annul  the  judgment  under  which  they 

are  held  686 

may  allow  a  new  bond  filed   if  first   defective  ;  and   require 

new  bond,  if  surety  insufficient 366 

not  without  statutory  authority 366 

CREDITOR, 

in  execution  or  attachment  not  jointly   liable  with  officer, 

unless  he  takes  possession  134,  135 

CREDITORS, 

attaching  goods  fraudulently  purchased 305 

CROPS,  GROWING, 

replevin  lies  for 95 

raised  by  one  in  adverse  possession  of  lands  not  repleviable. .       75 

though  he  is  a  mere  trespasser  75 

or  a  mere  squatter  in  the  public  domain 75 

raised   by   tenant   who,  being  a  sub-tenant,  lias  obtained  a 
lease  from  the  owner  to  himself,  repleviable  by  the  first 

tenant 75 

the  doctrine,  which  protects  one  in  adverse  possession,  is  ap- 
plied strictlj' 75,  76 

CROSS-REPLEVIN, 

defined 244  et  seq. 

not  permitted 243  et  seq. 

the  first  suit  may  be  pleaded  either  in  abatement,  or  in  bar. .  245 

motion  to  quash  writ   inapt 245 

second  writ  will  be  vacated,  and  goods  restored 685 

owner  cannot  replevy  from  one   who  has  replevied  from 

owner's  bailiff 245 

defendant  in  replevin  cannot  maintain  cross- replevin  by  omit- 
ting parties,  or  joining  new  parties 245 

nor  can  his  assignee  245 

nor  in  federal  court,  for  goods  replevied  in  state  court 245 

if  the  officer  takes  goods  not  named  in  his  writ,  replevin  lies.  245 
judgnientofretorno  not  performed,  no  bar  to  second  replevin.  664 
plaintiff  in  replevin  dies,  the  suit  abates,  and  defendant  may 

replevy 73 


INDEX.  721 

CUSTODY  OF  THE  LAW, 

goods  in,  not  repleviable 234,  236,  241,  242,  260,  261 

wrongful  seizure  does  not  amount  to 236,  237 

goods  taken  on  writ  of  replevin  in 422,  424  et  seq. 

power  of  tlie  court  over  goods  in 398 

goods  detained  as  the  fruits  of  crime,  and  to  be  used  as  evi- 
dence are  in 242 

goods  in  the  hands  of  sheriff  under  writ  of  replevin 235 

or  in  possession  of  plaintiff  under   tlie  bond,   or   defendant 

under  forthcoming  bond 236 

cannot  be  replevied  even  by  a  stranger  23.'i 

contra  ; 235.  237 

otherwise,  if  plaintiff  in  first  writ  waives  delivery. ..     235 
cannot  be  replevied,  even  on   proof  that  they  are  not 

tlie  goods  named  in  the  writ 235 

cannot   be  sold    by    the    plaintiff  pending    the  re- 
plevin     236,  423 

cases  contra 422,  423 

nor  taken  in  execution 236,  237 

nor  is  plaintiff  in  replevin  liable  as  garnishee  of  de- 
fendant      236 

garnishment  of  mortgagee   in  possession   does  not   place  the 

mortgaged  cliattels  in 236 

nor  the  mere  lien  of  an  execution 237 

nor     injunction    granted   tenant   against   landlord, 
and   requiring  tlie   latter  to  enclose  and  protect 

the  straw  produced  on  the   premises 237 

nor  the  unlawful  imjioundirig  of  negotiable  paper  or 

the  like,  by  order  of  the  court 241 

a  matter  of  course  where  goods  are  in  tlie  custody  of  the  law, 
to   permit  a   third  person   claiming  title   to   institute  his 

action 241 

or  prosecute  one  already  commenced,  without  leave.     241 
intoxicating  liijuors,  directed  by  statute  to  be  summarily  de- 
stroyed, replevin  lies 242 


D. 


DAMAGES.     Ske  Mkasike  ok  Damaoes. 

recoverable  in  replevin 21 ,  22,  24-36 

KngliHh  statutes  the  origin   of  the  law  in  this  country 44U 

Ti'imonH  fr)r  the  rule  awarding 451,  452 

<pi<!Hti«)ii  an  csHontiul  one  in  replevin 44W 

V,  plaintiff 18.  45fl 

at  common  law,  not  allowi><|  to  defendant 440 

allowe<l  to  dcffindaiil   by  Htutute   \'^ 

to  defendant,  in  riiod«!rii  practi<"«;.  t'>rt 

46 


722  INDEX. 

PAOC 

DAMAGES— Co7itinued. 

not  allowed  to  defendant  unless  he  had  the  property 450,  451 

not  allowed  to  defeiidaTit  unless  he  claims  return 456 

only  allowed  to  defendant  where  he  is  entitled  to  return 503 

rules  in  actions  of  tort  usually  apply 455,  456 

alloweil  only  as  an  incident  to  judgment  for  the  property.  450,  451 

must  be  claimed  in  declaration 559 

failure  to  claim  a  fatal  defect 449 

usually  awarded  to  successful  party 450 

may  be  awarded  to  both  parties 451 

when  and  how  assessed 504,  505 

no  uniform  rule 455,  457,  463 

rule  in  Suydam  v.  Jenkins  480 

compensation  the  object 460 

compensation  the  rule  when  no  malice  exists 462 

double  not  allowed 465 

in  a  suit  for  detention,  proof  of  wrongful  taking  not  proper 

■^  to  affect 325 

party  claiming  must  do  what  he  can  to  avoid  loss 485,  486 

nominal  whei'e  suit  is  dismissed  for  informality 453,  454 

when   taking   was   wrongful,    estimated   from  the    time  of 

taking 462 

when  taking  was  rightful,  from  time  of  conversion 462 

plaintiff  cannot  dismiss  to  avoid  a  hearing  on  question  of.  434,  452 

special  miist  be  specially  alleged 482,  553 

only  noiniiml  allowed,  uidess  proof  of  actual  injury 458,  4.59 

^  where  plaintiflf's  title  is  divested  after  suit  brought 496 

right  of  plaintiff  at  the  time  of  judgment  controls 496 

distinction  between  replevin  and  trover 455,  456 

highest  market  value,  when  allowed 470 

qualifications  of  rule  allowing  highest  value 472 

suit  must  be  brought  within  reasonable  time 472 

market  value,  how  ascertained 473,  474 

place  where  value  is  considered  as  attaching ...  476  et  seq. 

value  of  goods  not  obtained  on  the  writ 465 

value  allowed  in  case  return  cannot  be  had 466  et  seq. 

where  value  of  property  is  stable 470 

where  value  of  property  is  fluctuating 461,  462 

value,  when  regarded  as  attaching 467 

party  claiming  value  must  show  himself  to  be  owner 473 

value  and,  must  be  separately  assessed 506 

when  value  is  not  allowed 460  et  seq. 

plaintiff  cannot  have  value  when  he  has  the  goods. . .    .  466  et  seq. 

as  between  joint  owners   500 

between  general  owner  and  a  trespas.ser 495 

"  between  general  owner  and  owner  of  a  limited  interest 496 

against  officer  for  failing  in  his  duty 499,  500 

between  officer  and  stranger  to  the  process 498 


INDEX.  723 

PAOE 

DAMAGES— Co  Ji^'?i  Hed. 

pledgee  may  recover  full  value  against  a  stranger 49() 

between  tlie  general  owner  and  a  stranger  to  the  suit 4"JG 

between  tlie  holder  of  a  limited  interest  and  the  holder  of 

the  general  property ...     4% 

assignee  for  creditors  against  sheriff  497 

between  bailee  and  general  owner 495 

between  general  owner  and  holder  of  lien 494 

pledgee  not  entitled  to  value  of  use  as 493 

as  between  owner  of  a  limited  interest  and  a  stninger,  full 

value  allowed 495 

between  officer  and  general  owner 498 

as  between  officers  holding  different  processes 495 

officer  acting  in  good  faith,  exemplary  not  allowed 497 

officer  for  wrongful  seizure 497 

officer  acting  with  malice 49H 

for  seizure,  exempt  property  on  execution 257 

officer  losing  bond 499 

where  defendant  puts  it  out  of  officer's  power  to  serve  writ..     136 

-  statement  of  value  in  affidavit,  how  far  binding 4S1 

depreciation  in  value,  when  an  element 462,  4G3 

increase  in  value,  how  allowed   4.50 

interest  on  value,  when  a  measure  of  damages 463,  464 

interest,  from  what  time  computed 565 

from  time  of  conversion,  when  allowed 470 

not  allowed  when  value  of  use  is  given 493 

wlien  part  only  of  the  goods  ai'e  found 465 

allowed  in  suit  on  bond 465 

when  defendant  is  a  stakeholder 460 

perisiiable  goods  j>en<ling  suit 422,  423 

change  of  form  alfecting — 

by  agreement  of  parties 182 

wiieii  it  does  not  change  title 181 

wliere  the  change  is  by  mistake 181 

where  the  ("liange  is  b}'  a  trespasser 181 

cliattels  annexed  to  real  estate 1W2 

coal  dug,  or  timber  cut   500,  .507 

timiier  converted  int(j  boards 470 

treHpii.sS«'r  cannot  make  a  profit  \>y  4X0 

desf^ription  to  Iki  employed 183 

loM  of  business,  how  far  compensated  in 4^3 

int«*rruj)tion  to  l)UsineHH 484,  485 

proHiK}<-tive  profits  not  allowed   484,  485 

near  or  probable  protits,  when  allowed.  .  .  485 

jirolits  of  illegal  biiHini'SM  not  allowed 484,485 

r«mnH«'l  fees,  when  iillowixl 480.  48« 

barnvl  hy  hiirriMider  of  goodH  Insforo  Huit  beglnn 450.  4.M 

ezpeniieM  of  moving  projHTty,  c<mtH  not  .  .  48H.  489 


724  INDEX. 

PAOE 

DAMAGES— Continued. 

in  a  suit  for  note  or  bill 474,  475  et  seq. 

when  jury  allowed  to  estimate  468,  469 

verdict  must  find 632 

when  suit  is  dismissed  for  informality,  court  will  hear  evi- 
dence upon  455 

assessed  to  the  time  of  judgment ...     457 

party  claiming  nmst  show 458,  459 

where  goods  are  delivered  without  bond 350 

wool  shorn  from  sheep  pending  suit  compensated  in.   443 

when  one  dei)rives  the  other  of  power  to  show  real  quality, 

best  quality  will  be  presumed 473 

how  awarded  to  one  joint  owner 397 

Bales  of  property  by  factor  without  orders 470  et  seq. 

to  compel  return  of  i)roperty 503,  504 

prethcm  affectionis  family  pictures 480 

trespasser  not  excused  by  distruction  of  property  501 

cannot  be  greater  tlian  claimed 506 

against  innocent  holder  who  enhances  value 179 

coin,  when  a  measure  of ■ 476 

return  of  property  in  mitigation  of 434,  435 

when  defendant  may  show  he  owned  the  property  in  miti- 
gation of 381 

where  defendant  retakes  the  property  by  force 136 

on  bond — 

when  right  of  action  accrues 382 

securities  liable  only  for  their  express  covenants 382 

securities  may  return  the  property  382 

how  assessed 396,  397 

nominal  unless  actual  shown  397 

when  only  those  "adjudged  "  in  the  replevin  suit.    .     383 

no  liability  unless  deliver}^  of  goods  on  the  writ 380 

not  for,  in  another  suit  379,  380 

where  the  parties  are  joint  owners 397 

amount  of 397 

effect  of  seizure  on  another  writ 398 

destruction  of  property  pending  suit 395 

value  of  use — 

rule  allowing  peculiar  to  replevin 455,  456,  492,  493 

allowed  only  where  property  is  chiefly  valuable  for 

use 493,  494 

illustrations  of  the  rule 491 

only  allowed  to  party  who  has  a  right  to  use 492,  493 

and  is  in  a  situation  to  use  it 492,  493 

not  allowed  an  officer 493 

or  pledgee  493 

depreciation  in  value  not  allowed  with  use 493 

interest  not  allowed  with  use 493 


INDEX  725 

PAOB 

DAMAGES— Con^H  ited. 
vindictive — 

meaning  of  the  term 511,  512 

rule  for  tlie  assessment  of 510  ef  seq. 

revengeful,  not  allowed 511,  512 

no  general  rule  governing 513,  514 

actual    malice    or    wanton    carelessness    nmst     be 

shown 513,514 

care  to  be  exercised  in  assessing 512 

illustrations  of  the  rule 515  et  seq. 

wliere  the  taking  was  with  malice 468,  469 

when  party  acts  in  defiance  of  another's  right 516 

against  officers  of  tlie  law 516 

not  allowed  against  officer  for  mistake 516,  517 

nominal,  awarded  to  idaintitT   jirevailing,  though  tlie  goods 

are   surrendered  after  institution  of  the  action 458 

tliough  no  damages  were  sustained 458 

substantial,  not  allowed  unless  proved 459 

and  the  amount 459 

plaintiff  recovers  all  damages  proximately  occasioned  by  tlie 

wrong 460 

where   defendant   retains  tho  goods,   damages    for 

detention,  up  to  the  verdict 461 

even  tliough  the  goods  cannot  be  restored 461 

and  any  deterioration  in  the  goods 463 

no  matter  what  may  be  the  cause  of  tlie  depreciation 

or  deterioration 463 

even  tliough   defendant,   an   officer,   claiming  only 

under  process,  has  gone  out  of  office 46;J 

effect  of  statute  allowing  plaintiff  "  such  damages  as  are 

right  and  proper  " 461 

effect  of  ai»i»reciation  in  value  of  the  goods 463 

plaintiff  recovers  interest  on  the  value,  when  no  other  dam- 
ages are  shown 464 

not  from  a  jtrior  date,  unless  the  value  at  that  dut« 

is  shown 464 

where  merchandise  is  recovered,  the  measure  of  damag»i8  is 

the  value 466 

cost  of  replacement  not  the  measure  of  dnmageH.  wliero  tho 

thing  r<'|»levied  in  second  hand  g(X>dH 466,  467 

the  value  is  allow. -d  to  plaintiff,  only  where  the  guutlsare  re- 
tained by  def*Mi<lunt 467 

and  tht'  value  of  tlie  goode  in  nut  to  be  included  in 

th«<  damages  for  dett-nti  >n. . .  ...     401 

of  what  date  tin*  value  is  to  1mi  aHM«Hi«Hl. .  .  4<18 

meaMure  of  damageH  for  the  <'<»nvei>ioii   of   n»>;oliiiblo  |iit|>er, 

corixjrat«  hUk-W.  land  wrip,  a  bnnker'H  pass  Inwik 474 

private  lotUTM  ;  diMvl  of  IiiihN  475 


^2Q  INDEX. 

PAOB 

DAl^lAGES— Continued. 

interest  at  lawful  rate  is  allowed  on  bonds  detained,  though 

they  bear  a  lower  rate 464,  465 

damages  allowed  against  bona  fide  purchaser  from  a  tres- 
passer      479 

damages  to  other  property  than  that  replevied  not  allowed . .     484 
nor  the  loss  of  employment  by  detention  of  a  work- 
man's tools 484 

nor  the  profits  of  contract,  the  performance  of  which 

was  prevented 484 

expenses  and  time  spent  in  seeking  for  the  goods 

allowed 486 

not  if  defendant  is  a  bona  fide  purchaser 487 

the  cost  of  replacing  a  building  removed 486 

expense  of  preparing  to  remove  the  goods  before  suit 

brought 486 

not  attorney's  bill,  nor  cost  of  preparation  for  trial..     487 

cases  contra 487 

nor  expenses  not  made  necessary  by  conduct  of  de- 
fendant       487 

value  of  the  use,  when  allowed 491 

not  unless  the  party  is  in  position  to  use  the  goods, 

and  entitled  to  use  them 492 

nor  save  for  the  time  they  might  reasonably  liave 

been  em  ployed 493 

a  deduction  to  be  made  for  wear  and  depreciation  in 

use 492 

no  allowance  for  the  use,  if  the  plaintiff  takes  judgment  for 

the  value  at  the  date  of  the  seizure  under  liis  writ 492 

and  the  allowance  is  the  reasonable  value,  not  what 

the  party  might  have  gained 492 

where  plaintiff  has  a  special  interest,  he  recovers  only  the 

value  of  that  interest. ...    494 

plaintiff  not  demanding  immediate  delivery,  recovers  dam- 
ages for  detention 503 

defendant  prevailing,  allowed   for  the  interruption  of  his 

business 484 

not  the  cost  of  a  new  article,  bought  to  replace  that 

replevied 486 

rule  where  the  mortgagee,  suing  in  replevin,  fails 494 

whether  the  damages  must  be  assessed  in  the  action  of  re- 
plevin      ...     504 

may  be  assessed  by  the  court,  without  jury,  where  plaintiff 

discontinues 504 

cases  contra 504 

the  jury  need  ascertain  only  the  value,  the  court  adding 

interest 504 

mitigation  of  damages  ;  return  of  the  goods 514 


INDEX.  707 

DAMAGES— Con  f  J  JiMcif. 

or  leturu  of  a  portion  of  the  goods 514 

not  unless  accepted 514 

taxes  paid  by  defendant  not  allowed  514 

carrier  delivering  witiiout  authority  goods  sold  on  credit. 

not  allowed  the  amount  paid  by  the  buyer 514 

but  may  show  full  payment 514 

or  return  and  acceptance  of  the  goods 514 

or  that,  by  process  of  law,  they  have  been  applied  to 

pay  plaintiff's  debts 514 

or  any  lawful  lien  or  claim  upon  the  goods 514 

payments  on  conditional  purchase  not  alloweil 514 

sheep  replevied,  and  damages  recovered  for  the  wool  shorn, 

defendant  allowed  the  cost  of  the  shearing 514 

not  the  cost  of  maintaining  the  sheep 514 

otiierwise  during  an  appeal  in  which  he  is  successful  514 
DEAD  BODY. 

replevin  not  allowed  for 26 

DEATH  OF  PARTY, 

effect  upon  bond 373 

effect  of  on  suit 682 

DEATH  OR  DE.STRUCTION  OF  PROPERTY, 

replevin  does  n<»t  lie  after 132 

wrongful  taker  not  permitted  to  set  up  as  a  defense 395.  501 

judgment  for  value  notwithstanding ,501,  502 

emancipation  of  shives 502 

effect  of  on  bond 395 

on  question  of  damages 501 

goods  pending  suit,  at  whose  risk 422,  423 

perishable  goods 422.  423 

juilgment  in  sucli  cases 650,  651 

DEBT, 

a  proper  form  of  action  on  replevin  bond 389 

DECLARATION.    See  Plkadinos. 

wlien  averment  of  demand  necensary  in 559 

whether  averment  <»f  right  of  possession  is  sufficient 557 

must  all<'ge  j)r<»|>erty  in   plaintilT         554 

count  in  trover  for  gfx^ids  not  d.-livered 551 

must  follow  tlie  vvrit   558 

niUMt  BtaU*  time  and  place 555 

inunt  aver  title  l)y  travernable  averment 556 

may  f;oritnin  wveral  countH 551 

rightH  of  p;irti«'s  uikUt  a  single  count 551 

should  Ktut<'  value  of  property 5.'»S 

deH<-rijilion  of  pro|Mfrty  in   55K 

oniiHsioii  to  «hiim  diimaKeM  fatal   ....  4.50,  559 

when  muht  »ll»«go  H|M'eiiil  dama^^nN  55M 

averment  of  wrongful  dftenti<jn  enwtitial   


728  INDEX. 

PAGE 

DECLARATION— Con  fintted. 

wrongful   detention   does  not  sustain  charge  of  wrongful 

taking 552 

when  it  should  aver  wrongful  taking 552 

DEFENSES  TO  THE  ACTION, 

separate  for  separate  parties 561 

title  as,  must  be  shown  when  suit  began 561 

right  of  possession  as 1 08,  111 

ownership  not  necessary 109 

legal  title  superior  to  equitable 110 

property  in  defendant :  cannot  be  pleaded  by  receiptor 76 

nor  by  one  in  possession  as  trustee 76 

property  in  a  stranger  .  no  defense  to  a  receiptor 76 

nor  mortgagor  sued  by  mortgagee 76 

nor  to  a  mere  trespasser 76 

nor  to  one  who  fails  to  connect  himself  with  the  title.  76 
otherwise,  if  plaiiitifT  grounds  his    action  upon  title 

and  not  upon  prior  possession 76,  77 

no  defense  if  right  of  possession  is  in  plaintiff 76 

part  ownership  in  stranger 76 

plaintiff  claiming  under  a  mortgage  from  defendant,  the 
latter  may  show  that  he   held  as  trustee   for  his  wife, 

without  power  to  mortgage 77 

neither  party  can  assert  the  title  of  an  interpleader 77 

^  lien  of  partnership,   either  partner  made  defendant  may 

assert "^7 

expiration  of  plaintiff's  right :  by  a  foreclosure  or  sale  since 

action  brought,  defendant  may  plead 77 

not  where,  by  statute,  no  action  abates  by  transfer 

of  the  interest 77 

infancy  of  defendant  :  no  defense 77 

usury  :  in  chattel  mortgage  relied  upon  by  plaintiff 77 

bankruptcy  :  discharge  in,  no  defense 77 

seizure  under  writ  of  replevin  within  four  months 
of  filing  petition,  is  discharged  by  the  adjudica- 
tion   78 

sheriff  surrendering  to  trustee  in,  is  an  abandonment  and 

ousts,  the  jurisdiction 78 

indemnifying  bond  :   statute  prohibiting  action  against  of- 
ficer where  a  good  is  taken,  unconstitutional 78 

destruction  or  loss  of  the  goods 79 

delivery  to  a  stranger  :  no  defense 79 

though,  to  a  receiver  duly  appointed,  plaintiff  not 

being  a  party  to  the  suit 79 

even  to  mitigate  the  damages 79 

pledgee  who.  witliout  notice  of  plaintiff's  rights,  delivers  the 

goods  to  his  pledgor,  is  not  responsible 80 

non-detention  :  where  defendant  has  neither  actual  nor  con- 


INDEX.  729 

DEFENSES  TO  THE  ACTIONS— Continued. 

structive  possession,  and  lias  not  concealed  nor  made  way 

with  the  goods,  he  is  not  Hable 80 

e.  g.  father,  who  lias  no  possession  nor  control,  and 
merely  advises  son  not  to  deliver,  though  the 
goods  are  in  his  house  ;  or  plaintiff  in  execution  ; 

or  sureties  in  sherifT's  bond 80 

effect  of  statute  that,  if  goods  are  not  found,  plaintiff  may 

declare  for  value  and  damages 81 

whether  non-detention  may  be  pleaded  with  property  in  de- 
fendant        81 

goods  in  defendant's  possession,  when  writ  served,  but  not 

when  issued 81 

what  amounts  to  possession 57,  66,  67,  80,  81 

one  in  possession  of  tlie  goods  cannot  maintain  replevin.  ...       82 

though  a  mere  receiptor  to  defendant 82 

or  the  widow  of  former  owner,  and  the  adminis- 
trator has  advertised  sale  of  the  goods 82 

defendant  cannot  deny  possession  on  the  trial,  when  he  ad- 
mitted it  upon  demand 82 

or  has  given  a  forthcoming  bond 82 

otherwise,  if  tiie  bond  was  given  merely  to  avoid  im- 
prisonment        138 

or,  the  writ  is  for   logs  confu.sed    with   others  in  the 

boom,  and  the  real  number  is  indeterminable...       83 
non-detention   not  admissible  to  one  who  warned  plaintiff 

not  to  remove  the  goods 83 

nor,  to  an  officer  who  unconditionally  refu.sed  plain- 
tiff's demand 83,  344 

or,  who  justifies  under  his  levy 88 

even  though  the  goods  were  left  with  plaintiff,  /is  re- 
ceiptor      83 

nor,  an  assigne  f(»r  creditors  wlio  answers  plaintiff's 

demand  «'quivo<"ally 83 

nor,  one  who  asserts  title  under  plaintiff 83 

,  nor,  one  wiio  wiw  in   jMxssussion  at   the  time  of  the 

demand   and    parted    with    the  goods  before  the 

writ  issued Ki 

nor,  an  ofHcer  who  han  levied  on  the  gixxiii.  and  ap 

'■  (Kiinted  a  cuMt<Hlian 84 

nor,  an  oflicer  who  hu.s  taken  a  delivery  bund„ 84 

nor,  an  oHh-or  who  Ii.-ih  mudu  an  invc^ntory.  iutM>rtN 
control  by  hiH  pro<*eKM,  and  threateUN  to  runiovu 

them M 

nor.  an  oHlcer  wh<j»*e  doputr  in  in  |Mmi«oiMion  84 

ofllc«r   who   nmruly    unnoiiiuvd  a  levy,    taking   no 
|M>H)M-Hniiiii   and   exiTiined   no  control,  niny  i)!end 
'  non-detuution.. .  fM 


730  INDEX. 

DEFENSES  TO  THE  ACTlOl^— Continued.  page 

or,  one  wlio  is  not  in   possession   or  detaining  tlie 
goods  at  the  institution  of  a  replevin,  although 

guilty  before  that  of  an  iinlawful  taking 85 

otherwise,    if  lie    has    made    a    collusive    transfer, 

merely  to  evade  the  writ  and  defeat  the  action  85,  86 
plaintiff  refusing  to  remove  his  corn  from   defendant's  crib, 
defendant  having  buried  it  under  his  own  corn,  not  liable 

for  failing  to  make  immediate  deliver}-    344 

surrender  after  action  brought,  not  a  bar 332 

equitable  defenses 78,  GC8-G71,  685 

to  suit  on  bond 

technical  not  favored 385,  386 

should  be  made  in  replevin  suit 392,  393 

general  rule 393 

DEFENDANT, 

claiming  propertj',  sheriff  should  not  proceed 7 

when  an  actor  or  plaintiff 12 

who  may  be 519 

servant  not  usually  proper 525 

agreement  to  take,  will  not  sustain  replevin 132 

about  to  take  possession  not  sufficient 132 

must  be  one  in  possession  of  the  goods 130,  133,  136 

one  able  to  comply  with  mandate 130 

making  way  with  or  concealing  goods  to  avoid  writ 131 

liable  when  he  puts  it  out  of  officer's  power  to  serve  the  writ     136 

each  may  plead  separate  defenses 560,  561 

each  maj'  file  several  pleas 560,  561 

surrender  of  property  by  order  of  court  a  good  defense. . .  568,  569 

damages  awarded  to 456 

damages  against    456 

wrongful  disposing  of  property 136 

alias  writ  against 420,  421 

name  of,  must  appear  in  bond 368,  369,  387,  388 

when  may  have  judgment  for  return 338,  340,  438,  439 

succeeding  not  alwaj's  entitled  to  return  435,  436 

return  not  awardeil  unless  asked 434 

insolvency  of  does  not  prevent  return   440,  441 

avoiding  trial  on  merits,  when  entitled  to  return 444 

when  may  give  bond  and  retain  the  possession 40,  353 

pretending  he  has  the  goods,  estopped ...  341,  342 

when  must  plead  jointly  to  obtain  joint  return 560,  561 

bound  to  know  sheriff 873 

goods  on  person  of,  cannot  be  taken 137 

must  receive  property  tendered,  even  if  damaged 374,375 

in  execution  cannot  replevy  goods  seized  on 239 

in  replevin  cannot  replevy  the  goods 244,  245 

when  entitled  to  demand   319,  322 

grounds  of  demand  must  be  explained  to 343 


INDEX.  731 

PAOE 

DEFINITION. 

of  distress 4,  5 

of  replevin 21,  C'2 

by  Britten !{ 

by  Blackstone  tj 

DELIVERY  OF  PROPERTY, 

mandate  for.  in  tlie  writ .     419 

to  plaintiff  on  writ  of  replevin 274,  27r> 

where  part  only  obtained  alias  writ  may  issue 420,  421 

execution  of  bond  j)reredes 348,  34S),  419 

sheriff  cannot  deliver  without  bond 3»U) 

precedes  liabilitj'  on  bond 380 

to  complete  a  sale 104,  166 

of  gift 100 

suit  may  proceed  without 3."iS 

to  plaintiff  on  writ,  rights  conferred  by   421.  423  ft  soj. 

does  not  confer  title 424,  425 

upon  the  writ  always  precedes  judgment  for  a  return.  . .  .  443,  444 

after  trial,  judgment  for 447 

symbolic  when  sufficient  to  sustain  replevin 107 

plaintiff  need  not  demand,  at  the  institution  of  the  action,. .     3.')8 

principles  controlling   the  action  in  such  case 358 

DELFV^ERY  BOND.     See  FoUTHt'OMiNO  Bond. 
DEMAND, 

object  of "^l^ 

general  rules  governing 31U 

necassary  where  defendant's  pos-session  is  rigiitful 319,  322 

on  finder  of  property 3'5- 

taker  up  of  estrays ^^'^ 

purchaser  of  goods  payable  in  installments 332,  333 

innkeeper  or  carrier '^^7 

inn(x.ent  holder *5<'^  ^^■^ 

what  is  rightful  possession 3^4,  335 

possession  takon  to  preserve  not  a  conversion 331 

purclui»er  at  sheriff's  sale ''^"'l 

reasfin  for  the  rule  "'-•^ 

not  necessary — 

where  ilefendant's  jKwsession  is  wrongful 319 

accpiired  through  force  or  fraud 319 

pro(»f  of  wrongful  taking  suHicient 325 

from  thief  or  tres|>a.Kher !'2i 

whore  tln«  g<KMlH  have  Immmi  (•«)nvert««l 327 

meaning  of  •*  converMion  " 327 

frauduh-nt  purfhaser •••• ^^ 

whiMi  from  oHu-er •**'* 

whifti  fl'f'-ndant  refuwH  to  list«'ii H40 

when  he  hiiH  parted  with  |h.  s<  .,Mnii 3:»7 

when  mu«t  be  made.... .319.  337  rl  *r</. 


732  INDEX. 

PAGE 

DEMAND— CoHfi»Herf. 

before  suit  is  begun 337 

after  suit 338 

effect  of  failure  to  prove 338 

waiver  of — 

claim  of  ownership  by  defendant 340 

pU>a  setting  up  ownership 338,  340 

wlien  admitted  in  jileadings 340 

upon  wliom  must  be  made — 

upon  one  who  can  deliver , 341 

upon  defendant's  wife  or  servant 341 

upon  express  or  railroad  agent 343 

on  servant,  when  sufficient 345,  346 

by  whom  must  be  made — 

by  f atlier  or  guardian 343 

by  agent 343,  344 

refusal  to  deliver 323,  326 

true  ground  must  be  stated 340 

to  agent  for  want  of  authority 340 

what  is  sufficient  excuse  for 345 

by  servant  of  master's  goods 345 

refusal  to  listen  to 340 

eflfect  of  326 

oflfer  to  deliver  in  another  place 337 

should  be  made  on  all  several  defendants 341 

form  of 342 

grounds  for,  should  be  explained  wlien 343  et  seq. 

refusal  to  deliver,  the  true  ground  must  be  stated 344 

when  averment  of  in  declaration  necessary 681 

failure  to  prove,  effect  of 338 

necessary  in  replevin   by  mortgagee  against  mortgagor   in 

possession 320 

or  by  mortgagee  against  officer  who  levies  under  pro- 
cess against  mortgagor  ;   or  by  vendor  against 

vendee  in  conditional  sale 321 

cases  contra 322 

by  vendor  in  conditional  sale,  against  purchaser  from 

conditionjil  vendee 321 

or  against  one  in  possession,  pursuant  to  a  sale,  con- 
templated, but  not  consummated  ;  or  by  a  bona 
fide  purchaser  of  goods  tortiously  taken ;  or 
bailee  sued  by  vendee  of  bailor  ;  or  mortgagee  in 
possession,  even  where  validity  of  tlie  mortgage  is 
denied  ;  or  carrier, who  lias  received  the  goods  for 
transportation,  and  failed  in  his  duty  ;  or  anj'- 
one  in  lawful  possession,  even  though,  without 
authority,  he  has  loaned  the  thing  to  another...  321 
or,  where  plaintiff's  goods  were  originally  taken  in 


INDEX.  733 

PAQC 

DEMAND— Continued. 

wrong,  which  he  has  waived  by  accepting  com- 
pensation      321 

or,  where,  by  express  agreement,  the  right  of  the 
defendant    in  possession    is  terminable  only  by 

demand 321 

not  necessary  where  defendant  obtained  possession  by  force, 
fraud  or  wrong,  e.  g.  where  sheriff  levies  upon  mortgaged 
goods  in  defiance  of  the  rights  of  the  mortgagee  ;  or  of- 
ficer levies  process  issued  upon  void  affidavit  ;  or  pur- 
chaser upon  condition  has  not  performed  the  condition  ; 
or  goods  are  taken  for  a  tax.  for  which  they  are  not  liable  ; 
or  where  cattle  have  been  impounded  wrongfully  ;  or  de- 
fendant obtained  plaintiff's  goods  by  replevying  them 
from  a  stranger  ;  or  by  purchase  imder  execution  against 
a  stranger  ;  or  seized  them,  claiming  under  a  stranger. .     322 
or  defendant  obtained  the  goods  from  a  thief  or  tres- 
passer though  in  good  faith  ;  or  the  purchaser  pro- 
cured the  delivery  of  the  goods  by  fraud  and  with- 
out payment ;  or  the  goods  were  obtained  upon 
credit,  without  any  intention  to  pay  for  them  ;  or 
defendant  has  sold  the  goods,  or  put  them  out  of 
his  possession  ;  or  received  the  goods  from  one 
who  obtained  them  by  fraud,  or  from  one  who 
had  no  title  or  right  to  dispose  of  them,  even 
though   an   assignee  for  creditors  ;  or   where  a 
public  warehouseman  refuses  to  give  information 
about  the  goods  ;    or  defendant  asserts  title  and 
denies  plaintiff's  right ;  or  threatens  bodily  injury 
to  plaintiff  if  lie  meddle  with  the  goods  ;  or  where 
it  appears  that  a  demand  would  have  been  un- 
availing ;  or   defendant  gives  bond  and  retains 
the  goods  ;  or  by  his  answer,  asserts  title,  or  con- 
tests plaintiff's   right  on    the   trial  ;   or   secretes 

himself,  or  quits  the  jurisdiction 323,  324 

mere  denial  of  plaintiff's  riglit  to  possession,  not  a  waiver  of 

demand 323 

demand,  even  after  the  writ  i&sues.  is  sufficient,  if  refused.. .     337 
otiierwise,  where,  by  statute,  affidavit  of  detention 

must  precede  tlie  writ 337 

as  to  a  new  party  added,  demand  before  service  upon 

him  is  suffi(;ient 337 

demand  at  an  unreasonable  time  e.  g.  for  chandeliers 
and  gan  fixtures  of  a  dwelling  at  a  lato  hour  on 

Saturday  in  the  autumn 337 

upon  one  Jiaviiig  no  ••otitroi.  not  siiflicient 341 

nor  dfiiiand  upon   mi-rc  Imilet-,  after  the  gooda  have 

passed  from  his  iiossesHion n45 


734  INDEX. 

PAGE 

DEMAND— Co?ifi«i/ed. 

demand   upon  defendant's  agent  in  charge  of  tlie  goods  is 

sufficient 341 

or  upon  husband  only,  wliere  liusband  and  wife  are 
in  joint  possession  ;  or  upon  the  wife,  wlien  hus- 
band cannot  be  found 341 

or  upon  the  baggage  master  of  a  raih'oad  company 

for  the  baggage  of  a  passenger 295 

demand  for  live  stock  by  the  brand,  sufficient 342 

inquiry  by  a  servant  for  his  master's  animals,  a  demand 342 

other  cases,  there  the  party's  conduct  held  equivalent  to  a 

demand 342 

demand  upon  the  wife,  not  sufficient  to  charge  the  husband.     345 
nor  upon  continuing  members  of  a  dissolved  part- 
nership, to  charge  the  retiring  members.    341 

a  refusal,  in  order  to  charge  the  defendant,  must  be  in  some 
proximity  to  the  goods,  and  show  an  intention  to  assert 

dominion,  and  exclude  the  owner 345 

demand  in  violation  of  an  injunction,  goes  for  nothing 326 

omission  of  demand  merely  charges  plaintiff  with  costs 339 

plaintiff  not  required  to  give  tijue  to  defendant  to  make  in- 
quiry       342 

contra 330,  344,  345 

demand  may  be  made  by  a  minor,  or  a  mere  servant 343 

whether  servant  must  produce  evidence  of  his  authority.  343,  344 
DEPRECIATION, 

when  a  proper  element  of  damages 462,  463 

DEPUTY, 

sheriff  required  to  have 10 

authority  to  serve  process 272 

act  of,  act  of  sheriff 276;  277 

defendant  must  know 272 

special,  must  show  authority 272 

when  must  take  bond  353 

disputes  between,  sheriff  must  settle 277 

sheriff  responsible  for  acts  of 277 

DESCRIPTION, 

of  goods 153 

when  goods  cannot  be  identified  replevin  does  not  lie. .  164  et  seq. 

general,  when  sufficient 161,  163 

synonymous  wlien  allowed,  illustrations  of 160 

strictness  of  required.    153,  154,  163,  420 

reasonable  certainty  sufficient 155 

or  description  which,  with  inquiry,  will  identify  the 

^.  goods 155 

descriptions  held  sufficient 1.55,  158 

held  insufficient 158 

what  waives  uncertainty  of  description 159 


INDEX.  735 

PAGK 

DESCRIPTION— Co»f//tued. 

"store  and  contents,"  when  sufficient 161 

quantity  described  as  "  about  "  not  sufficient  163 

variance  in.  between  writ  and  declaration 162,  163 

may  refer  to  kind  or  quantity. ...    162 

writ,  affidavit  and  declaration  must  correspond 162,  163 

objection  to  insufficiency  of,  when  must  be  taken 163 

omission  of  words  of 162,  163 

of  goods  purchased  in  bulk,  selection  by  purcliaser. . . .  165  et  seq. 

correctness  of,  when  a  question  for  the  jury 160 

in  writ  and  in  return  163 

bond  must  contain 36& 

affidavit  must  contain 548,  551 

to  be  employed  when  goods  have  undergone  a  change 183 

DETENTION. 

wrongful,  necessarj'  to  sustain  replevin 48,  130,  131 

charge  of,  sustained  by  proof  of  taking 49,  325 

distinction  between,  and  ti'espass 48 

allegation  of,  the  gist  of  the  action 461 ,  552 

DESTRUCTION  OF  PROPERTY, 

replevin  does  not  lie  after  131,  13!? 

trespasser  cannot  set  up  as  a  defense 395,  501 

pending  suit,  at  wliose  risk 422,  423 

judgment  for  value 395,  650 

in  hands  of  sheriff 274,  275 

effect  of  on  bond 395 

DETINET  AND  DETINUET, 

forms  explained 48 

DILIGENCE, 

in  bringing  suit,  as  affecting  question  of  damages 472 

in  rescinding  a  sale  for  fraud 307.  308 

DISCONTINUANCE— plaintiff  may  discontinue  if  the  goods  are  not 

seized  under  the  writ 453 

otherwise  if  the  goods  are  taken  under  the  writ  ;  de- 
fendant may  nevertlieless  i)rove  his  riglit,  and 
take  judgment  for  return  and  damages. .  .   51,  452,  453 
and   Miird  persons  interjjleading  may  proceed  witli 

'  the  controversy,  as  between  tliemselvos 453 

plaintiff's  failure  to  give  a  new  bond,  wlien  required  does 

not  work 361 

judgment  ii|)on,  no  adjudication  of  tlie  title 409,  454 

not  to  be  allowed  by  couhent  of  part  of  tlie  defendants 453 

plaintiff  must  at  on(;e  return  the  goodn 453 

and  «;aiinot  bring  a  wjcond  r(!|(i(n'in,  without  return 80,  81 

contra,  the  giMidn  are  immcdiatfly   in   conslrnctive   jMJStses- 

Kion  (jf  tlie  defendaiif  htl.  8-1 


736  INDEX. 

PAOE 

DISCONTINUANCE— Con/mued. 

filing  an  amended  declaration  against  one  defendant  ia  a 

discontinuance  as  to  the  otliers 453 

defendant  not  entitled  to,  by  disclaiming  title 453 

nor  by  surrender  of  part  of  the  goods 453 

effect  of  discontinuance 454 

plaintiff  no  longer  an  actor,  can  only  resist  defend- 
ant's claim  for  damages 505 

lien  of  execution  under  which  the  goods  were  seized,  imme- 
diately revives 453,454 

no  bar  to  an  action  of  trespass 664 

the  court  may  assess  the  damages 504 

cases  contra 504,  505 

court  may  re-instate 454 

DISMISSAL, 

question  of  damages  in  such  case 453,  454 

nominal  damages  awarded 455 

not  allowed  to  prevent  hearing  as  to  damages 434,  452 

defendant  may  replevin  property  after 424 

a  breach  of  condition  to  prosecute  with  effect 372 

DISTRAINOR. 

lien  of.  lost  by  the  replevin  of  the  goods 421,  424 

DISTRESS  FOR  RENT, 

defined 4 

origin  of  the  right 610,  611 

how  taken 5,  610,  611 

wrongful  when  security  was  offered 11 

originally  could  not  be  sold 5 

a  pledge  or  security  only  5 

allied  to  the  law  of  replevin 2 

usually  for  rent 5 

the  wrongful  detention  of  little  better  than  robbery 12 

at  the  risk  of  the  owner 5 

abuses  of  the  right  of,  and  the  remedies  for 6 

cannot  be  made  the  day  rent  is  due 614,  615 

rights  of  landlord 613 

what  goods  may  be  distrained 614,  615,  724 

fixtures  severed  by  tenant ;  goods  of  sub-tenant,  for 
rent  due  by  original  tenant ;  goods  of  a  stranger  not 

left  in  the  way  of  trade 614 

goods  of  stranger  removed  before  levy,  cannot    be 

pursued 614 

goods  of  a  stranger  left  upon  the  pavement  not  dis- 

trainable 615 

5  articles  worn  on  the  person  not  liable 614,615 

landlord  cannot  distrain  twice  for  same  rent 614,  615 

right  of,  generally  in  force  in  tliis  country 611,  612 

not  a  suit  at  law  612 


INDEX,  737 

PAOE 

DISTRESS  FOR  REKT— Continued. 

proceeding  in  case  of 613 

possession  must  be  taken,  or  the  distress  is  futile 5 

the  goods  may   be  left   with  the   tenant  for  a  reasonable 

time 5 

if  goods  are  left  an  unreasonable  time,  and  the  tenant  sells 

to  a  bona  fide  purchaser,  the  lien  is  lost 5 

constructive  possession  may  retain  the  lien 5 

an  attachment  or  assignment  prior  to  actual  levy  of 

the  distress  warrant,  takes  precedence  of  it 5 

DISTREINT  DAMAGE  FEASANT. 

animal  not  reple  viable  without  tender  of  damages  and  com- 
pensation for  its  keep 124 

no  allowance  for  keep  unless  given  by  statute 125 

appreciable  damage  must  be  shown 124 

if  damage  is  claimed  when  none  were  in  fact  sustained  des- 

trainor  loses  his  lien  for  a  lawful  charge 125 

strict  compliance  witli  the  statute  must  be  shown 124 

unless  waived 124 

distreinor  must  show  a  lawful  fence 125 

that  owner  replevied  before  distreinor  could  ascertain  his 
name  and  give  the  notice  required  by  statute  is  a  good 

plea 125 

right  to  replevy 40,  423 

replevin,  ancient  remedy  for 610 

goods  delivered  to  tenant  to  be  worked  up  in  his  trade  for 

another,  not  liable  to 614,  615 

damages  in  case  of 495 

DURESS. 

goods  obtained  by,  replevin  for 306,  336 

DWELLING  OF  DEFENDANT, 

does  not  protect  goods  of  another 272 


ENGLLSH  STATUTES, 

the  bawis  of  the  law  of  damages  in  this  country 349,  449 

EQUITABLE  DEFENSES, 

in  the  action  of  rr-plevin 78,  668-671 

in  th«  action  on  the  bond. . 409 

EMANCIPATION  OF  SLAVES, 

affecting  tlie  question  of  damages 502 

ESSOIN, 

defendant  rK»t  allowed 12 

ESTOPPEL. 

IKirmitting  another  to  asoert  title. .    I'M 

47 


738  INDEX. 

PAOS 

ESTOPPEL— Con  ^n  Jted. 

covenant  for  title  by  tlie  seller 138 

one  urging  a  particular  action,  cannot  object  to  the  form  of 

the  action 138 

defendant,  giving  a  delivery  bond,  estopped  to  deny  posses- 
sion         82 

not  if  the  bond  is  given  merely  to  avoid  imprisonment     138 
one  failing  to  assert  his  claim  to  part  of  a  mass  indistinguish- 
able,  to  an   officer   projwsing  to  levy  thereon   process 

against  a  stranger,  is  estopped 171 

pretending  he  has  the  goods 375 

and  one  wlio  permits  his  goods  to  be  confused  with 

tlie  like  goods  of  a  judgment  debtor 171 

wife  permitting  husband  to  list  her  goods  as  his  own,  is  not 

estopped 138 

admissions,  or  failure  to  assert  title,  under  a  mistake  of  facts, 

or  without  full  knowledge,  not  an  estoppel 139 

ESTRAYS.— See  Animals  Impounded,  Distueint  Damage  Feasant. 

taker  up,  conforming  to  law,  has  a  lien  on  the  property..  118,  332 

must  comply  strictlj'  with  law 119 

taker  up,  when  entitled  to  maintain  replevin 557 

taker  up  complying  with  the  law  entitled  to  demand  and 

tender 332 

taker  up  when  a  trespasser 332 

EVIDENCE, 

scope  of,  admissible  in. replevin 49,  50 

what  sufficient  to  sustain  claim  of  ownership 106  et  seq. 

meaning  of  the  term  "  owner  " 542,  543 

meaning  of  the  term  "  property  in  plaintiff" 106  et  seq. 

of  actual  detention  necessary  48 

that  defendant  was  about  to  take  possession  not  sufficient  132,  133 

proof  of  wrongful  taking,  when  sufficient 49 

proof  of  forcible  taking  not  necessary   106 

prior  rightful  possession,  when  sufficient  112,  114 

plaintiff  must  show  a  right  to  immediate  and  exclusive  pos- 
session  105,  106 

title  to  land,  when  in  replevin 96,  97 

as  to  what  is  or  is  not  realty 90,  91  ct  seq. 

of  colorable  title  to  land,  when  defense  in  replevin 97 

mortgage  how  far  evidence  of  title  to  chattels  severed  from 

real  estate    102  et  seq. 

chattel  mortgage,  how  far  evidence  of  title 118 

of  legal  title  w-ill  prevail  over  equitable 110 

affidavit  must  be  framed  to  meet 541 

of  value  at  a  distant  market  to  ascertain  true  value 477 

to  sustain  vindictive  damages 512 

special  deputy  must  show  his  authority 272 

what  a  demand  and  refusal  is  evidence  of 326 


INDEX.  739 

PAGE 

EVIDENCE— Continued. 

proof  of  demand  and  refusal,  when  necessary 319  et  seq. 

of  value  of  use,  when  evidence  of  damage 493,  494 

judgment  in  replevin  not  necessarily  evidence  of  ownership.     109 

as  to  the  identity  of  the  property 152,  153,  154 

jury  to  determine  identity  from 160 

as  to  description  must  correspond  with  writ  and  declara- 
tion   1 62,  163 

of  title  must  not  be  stated  in  pleading 556 

of  a  selection  of  property  by  a  purchaser 165,  166 

of  the  value  of  goods,  for  fixing  amount  of  bond 360 

affidavit,  when  of  value 481,  544 

of  value  and  damages  must  be  separate 506 

contract  for  purchase  not,  of  title 126 

carrier  cannot  prove  title  in  a  third  person 110 

what  is  sufficient  to  show  the  goods  were  seized  for  a  tax 225 

presumption  of  title  from  possession 587 

continuance  of  title  once  shown  ;  or  value 587 

of  conversion  of  all,  from  possession  of  part 587 

that  an  assignment  for  creditors  was  accepted  by  as- 
signee   ~. 587 

that  judgment  is  within  the  matter  in  issue 587 

plaintiff  has  the  burden  of  siiowing  title  ;  and  his  right  to 
possession  ;  the  identity  of  the  goods  ;  and  wrongful  de- 
tention by  defendant 587,  588 

even  though  defendant  asserts  a  lien,  or  pleads  an  af- 
firmative plea 587,  588 

burden  of  proof,  where  plahitiff  alleges  fraud  in  the  purchase 
of  goods  from  him,  and  defendant  is  a  stranger  to  that 

purchase  .    588 

plaintiff  claiming  under  a  mortgage  must  prove  the  mort- 
gage and  the  identity  of  the  chattel 588 

and  where  the  mortgage  provides  for  retention  of 
possession  by  mortgagor  imtil  maturity,  and  the 
debt  has  not  matured,  must  prove  a  violation  of 

other  condition 5^8 

each  party  has  the  burden  of  establishing  tlie  issue  which  he 

tenders 588,590 

whoever  claiujs  as  a  bona  fide  purchaser  has  the  burden  of 

showing  all  the  clerncnts  of  such  purchase 589 

comi>etenry    and    relevancy  :     merchant's   invoice,    bill    of 

sale 590.  593,  602 

inventory  of   furniture  ;    inventory  of   married  wo- 

nuin'H  HJ'parute  jiroinirty 591 

aSHeHsment   list   ma<Ie   by    liusband,    not   admisaiblu 

againHt  wife 594 

whethfT  admihsible  against  the  party  making 594 

ncjt  admissible  in  iiis  favor 594 


740  INDEX. 

PAGE 

E  VIDENCE— Conf  iH  ned. 

fraud  alleged,  other  acts  of  fraud  admissible 594 

acts  and  declarations  of  the  vendee  in  a  sale  alleged 

to  be  fraudulent 595 

reports  of  a  commercial  agency  not  admissible  595 

statements  of  the  buyer  to  the  agent  are 595 

evidence  in  general  where  fraud  in  a  purchase  is  al- 
leged  595,  597 

how  value  is  to  be  proved  598 

declarations  :  of  a  party  to  a  sale,  at  tlie  time  of  it,  or 

of  one  in  possession  of  goods,  admissible 598,  600 

of  one  since  deceased,  made  while  in  possession.  ..599,  600 
declarations  made  after  parting  with  possession,  not 

admissible 600 

forthcoming  bond   admissible   to  show   defendant's 

possession,  and  the  identity  of  the  goods 599 

pleadings  in  a  different  suit 599 

effect  of  answer  denying  plaintiff's  title,  but  not 
denying  other  averments,  showing  how  the  title 

was  derived 599 

in  replevin  against  sheriff,  the  affidavit  in  attach- 
ment in  the  suit,  under  process  in  whi(;h  he  holds 

the  goods,  not  admissible 600 

corporate  records  admissible  against  the  corporation    599 

not  in  its  favor 600 

brand  or  flesh  mai'ks  on  animals  admissible 600 

not  if  recorded  after  the  taking 600 

variance  between  allegations  and  proof. .'. 600 

sufficiency  of  the  evidence,  instances 601 

jurors  may  refer  to  their  own  knowledge,  as  to  the 

value  of  household  goods 603 

not  competent  to  inquire  of  a  witness  "  w^ho  had  pos- 
session ?  "    or,    "have    you     parted    with    the 

"title?" 592 

"  who  was  the  owner  of  the  property  ?  "  held  proper.     592 
party  who  is  a  witness  may  not  prepare  in  advance  a 
schedule  of  the  several  articles  replevied,  and 

tlie  value  of  each,  using  this  upon  the  trial 593 

not  admissible  to  read  from  bills  and  books  the  cost 
in  other  markets  of  goods  similar  to  those  re- 
plevied       593 

an  offer  of  proof  must  name  the  witness  or  the  char- 
acter of  testimony  proposed 592 

witness  may  not  testify  to  his  motives,  belief  or  pur- 
poses              592 

one  claiming  the  goods  were  obtained  from  him  by 
fraud,  may  testify  that  he  relied  upon  the  pur- 
chaser's statements,  inducing  the  sale 593 


INDEX.  741 

PAOE 

EVIDENCE— Continued. 

party  may  testify  that  no  person  had  authority  from 

him  to  sell  any  of  the  goods 593 

parol  admissible  to  sliow  title  to  chattels;  or  to  show 
a  parol  agreement,  though  it  involves  the  terms 
of  a  writing  not  introduced 593 

to  explain  bills  of  items,  and  show  that  the  transac- 
tion, apparently  a  sale,  was  in  fact  a  bailment ; 
to  explain  the  meaning  of  the  equivocal  words 
in  a  book  of  accounts  593 

EXECUTION  OR  ATTACHMENT.    See  Process. 

goods  seized  on,  defendant  cannot  replevy. 239 

even  though  there  be  no  statutory  prohibition 239 

and  though  the  judgment  be  alleged  to  be  void .     239 

and  though  the  execution  for  costs  includes  items 

not  taxable 240 

stranger  may  replevy 239,  240 

distinction  between,  and  writ  of  replevin 244,  263 

oflBcer  must  take  tlie  goods  of  the  defendant  named  at  his 

peril 245 

levy  of.  confers  a  special  property  on  officer 126,  279 

lien  of,  continuing  381 

property  taken  on  and  replevied,  and  again  taken  on  another 

execution ,  is  a  return 424,  425 

will  protect  officer  when  sued  in  trespass 247 

effect  of  a  replevy  of  goods  seized 279,  423 

goods  wrongfully  seized  on 236 

owner  ma)'  retake,  when 237 

levied  on  goods  of  a  stranger  by  his  procurement 175 

goods  wrongfully  taken  on,  what  court  has  jurisdiction 257 

on  interest  of  mortgagor  of  chattels 184 

directs  the  seizure  of  defendant's  goods 245  et  seq. 

goods  taken  on,  when  not  repleviable 234,  236 

against  one  of  a  firm,  officer  may  seize  partnership  goods. ..  150  et 

scq. 

gale  on  wrongful,  does  not  divest  title 129 

transfers  no  title,  except  wliat  defendant  had 286 

conveys  all  tiie  title  the  defentlant  had 279  • 

damages  to  party  holding  under 495 

EXECUTION  SALE, 

irregularities  do  not  impair  the  title OH,  09 

goo<lH  must  be  present 69 

no  delivery  nec^essary 69 

defendant  muHt  not  delay  in  his  objections,  until  the  riglitu 

of  third  jiefHon  intervene 09 

of  partnership  goods  for  private  debt  of  one  partner,  pur- 

choHtir  not  entitled  to  posseBsion 72 


742  INDEX. 

EXCEPTIONS,  "" 

to  bond  waived  by  plea  to  merits 368 

to  securities  on  bond 368 

to  defects  in  affidavit 543 

EXECUTORS  AND  ADMINISTRATORS.    See  Parties. 

may  bring  replevin 521 

not  officially  guilty  of  tort 521,  523 

EXEMPT  PROPERTY. 

taken  in  execution,  debtor  may  replevy 250 

how  and  when  the  exemption  must  be  claimed 251,  255 

all  conditions  of  the  statute  must  be  complied  with.     255 

256 
husband  may  claim  the  exemption,  where  given  for  the  fam- 
ily, thougli  the  goods  are  the  property  of  the  wife,  and 

taken  in  execution  against  her 252 

when  the  wife  may  claim  the  exemption 252 

where  the  exemption  is  allowed  to  the  wife,  husband  cannot 

replevy  from  her 250,  251 

chattels  exempted   to  the   family  may  be  the  property  of 

either  spouse  or  community  property 253 

partnership  cannot  claim  an  exemption 251 

what  may  be  claimed  as  exempt 253 

.  partnership  goods 254 

where  the  plaintiff's  attachment  or  execution,  is  for  the  pur- 
chase monej'  of  the  goods,  no  exemption  allowed 254 

fraudulent  transfer  of  exempt  goods  does  not  take  away  the 

exemption 254,  255 

debtor  not  estopped  by  giving  a  receipt  for  the  goods 254 

husband  cannot  waive  the  right  of  the  wife,  nor  wife  that  of 

the  husband 252,  254 

intended  removal  from  the  jurisdiction  though  commenced, 

does  not  take  away  the  exemption 255 

nor  does  the  securing  of  an  exemption,  and  consum- 
ing or  disposing  of  the  goods,  take  away  the 

right  to  a  second  exemption 255 

nor  a  sale  which  has  been  rescinded 255 

who  is  a  resident  within  the  statute  of  exemption 251,  255 

how  the  exemption  is  pleaded 255,  256 

burden  of  proof 2.56 

no  set  off  allowed 256 

if  exemption  established  debtor  recovers  the  goods,  or  the 

full  value 256 

EXEMPTION, 

a  personal  privilege 257 

aid  of  statute  must  be  invoked 251 

waiver  of,  by  one  creditor  cannot  be  taken  advantage  of  by 

another    251 

'  damages  for  seizing 257 


INDEX.  743 

PAGE 

EXPENSES, 

of  suit  not  allowed  as  damages 486,  487  et  seq. 

of  taking  and  moving  property  allowed  as  costs,  not  dam- 
ages   488,  489 

EXPRESS  AGENT, 

demand  upon,  sufficient 343 

EXPRESS  COMPANY, 

agent  of,  proper  defendant 135 

F. 

FAMILY  PICTURES, 

damages  in  case  of  taking 480 

FATHER, 

may  sustain  replevin  for  property  of  minor  child 525 

demand  by,  when  sufficient 343,  344 

FENCE, 

on  land  of  anotlier 95,  96 

FINDER, 

of  note  has  no  right  to  collect  it 117 

of  goods  entitled  to  demand 332 

when  he  can  sustain  replevin 114  et  seq. 

cannot  claim  lien  for  expenses 116 

or  for  services  gratuitously  bestowed 332 

setting  up  a  lien  not  entitled  to  demand 332 

has  lien  for  reward  offered 118,  116 

FINDING,  TITLE  BY  : 

finder  of  lost  goods,  and  not  the  owner  of  the  land,  takes  the 

title  74,  115 

purse  casuallj'  left,  is  not  lost  74 

nor  hides  accidentally  overlooked  though  forgotten  for  forty 

years  74 

aerolite  belongs  to  the  owner  of  the  land,  not  to  the  finder. .       74 
case  of  the  ancient  boat 116,  US 

FINE. 

goods  seized  for  fine  not  repleviable 330,  331 

FIRM, 

when  responsible  for  taking  by  one  member 134 

FIXTURES, 

wliat  are? 26,  29 

as  l>otweeii  vendor  and  vendee  of  land 29 

as  between  vendor  of  the  chattel  and  owner  of  the  land  to 

whicli  it  is  attached 30 

a.s  l>etween  mortgagor  and  mortgagee 31 

as  Ixftween  landhtrd  and  tenant 32,  14S 

FORCIBLE  TAKIN(;, 

of  one's  uwn  goods,  rcplciviri  dues  not  lie  for 47 

proof  of  not  iieceHHury  to  hUhtuin  replevin KWl 

alwayH  wrongful 33ft 


744  INDEX. 

PAGE 

FORCE  OR  FRAUD, 

goods  acquired  by,  demand  not  necessary 319-322 

FORTHCOMING  BOND, 

any  defendant   in  possession   may  execute  and  retain   the 

goods  353 

tlioi.gli  tlie  officer  fails  to  procure  appraisement 353 

time  allowed  for  execution 359 

need  not  be  executed  in  presence  of  the  sheriff 354 

nor  be  formally  accepted 355 

nor  recite  that  the  goods  taken  are  not  described  in 

affidavit 353 

bond  void  in  such  case 353 

valid,  tiiough  payable  to  slieriff  instead  of  plaintiff  and  ex- 
ecuted by  only  one  of  several  defendants 364 

and,  altiiough  providing  for  return  of  goods  by  de- 
fendant, and  not  b\'  sureties 364 

and  though  without  penalty 354 

though  it  omits  some  of  the  goods  replevied  and  in- 
serts others 355 

)  though  subscribed  by  mark  only 354 

amendment,  in  wliat  cases  allowed .    367 

admissions  not  to  be  retracted  by 355 

construction  of  bond 354,  355 

surety  liable,  only  according  to  his  contract 354 

maj'  defend  the  replevin  for  liis  own  protection 355 

may  tender  the  goods  and  be  acquitted  of  the  value.     355 

not  liable  for  the  costs  of  an  appeal 355 

may  not  question  the  regularity  of  proceedings  in 

the  replevin  ;  nor  in  the  return  of  the  bond 355 

nor  object  that  the  bond  was  not  ai>proved  by  the 
sheriff  ;  or  was  not  signed  in  his  presence  ;  or 
complain  of  misdirection  of  tlie  writ  ;  or  that  the 
officer  failed  to  take  bond  from  the  plaintiff ;  or 
that  no  execution  had  issued  upon  the  judgment 
of  retorno  ;  or  that  the  goods  might  have  been 

taken  on  such  execution 355 

or  that  the  suit  was  compromised,  and  judgment 
given  for  the  value  without  his  consent ;  or  that 
goods  were  not  in  defendant's  possession  at  the 
institution  of  replevin  ;  or  were  not  returned  to 
him  by  sheriff  ;  or  that  there  was  negligent 
delay  in  the  prosecution  of  the  replevin  ;  or  that 
the  goods  are  not  the  proi>erty  of  plaintiff  in  the 
replevin  ;  or  that  the  lx)nd  was  executed  at  the 
I  request  of  only  one  defendant,  who  was  after- 
wards dismissed 356 

or  that  the  goods  were  accidentally  destroyed  while 
in  defendant's  possession  ;  or  that  defendant  in 


INDEX.  745. 

FORTHCOMING  BOND -Confmwed.  "°* 

the  replevin  was  required  to  surrender  the  goods 
to  a  receiver  appointed  in  an  action  to  which 
plaintiff  was  not  a  party  ;  or  that  an  injunction 
was  obtained  by  a  stranger,  after  breach  of  the 

bond 357 

sureties  concluded  by  the  judgment  in  replevin  356,  357 

bound  to  return  the  identical  goods 355,  356 

bound  for  the  conduct  of  each  and  all  of  defendants.     35fr 
if  the  suit  begins  against  two,  and  both  give  the  bond,  and 
plaintiff  discontinues  as  to  one,   the  sureties  are  dis- 
charged      356 

and,  where  the  law  requires  an  alternative  judgment,  the 
sureties  are  not  liable  if  the  judgment  is  absolute  for 

return 357 

sureties  may  show  that  plaintiff  recovered  judgment  for  the 
value  and  pleaded  it  in  set-off  to  an  action  by  defendant 

/  .  in  replevin 357 

mere  return  of  the  goods,   not  a  satisfaction,  where  the 

sureties  are  also  liable  for  costs 357 

sureties  not  liable  for  non-return,  if,  where  the  condition  is 
to  return  '•  if  return  is  awarded,"  there  was  no  judgment 

for  return 357 

an  appeal   does   not  release  the  sureties,  but  they  are  not 

liable  to  an  action  so  long  as  a  perfected  appeal  is  pending    357 
sureties  liable  only  for  the  value  of  the  goods  at  the  time  of 

the  seizure  357 

and  onl}'  for  the  value  of  plaintiff's  special  interest. .     357 
goods  held  by  defendant  under  forthcoming  bond,  cannot  be 

sold  pending  the  replevin 236- 

nor  taken  in  execution  236 

FRAUDULENT  TAKER, 

acquires  no  title 292 

no  demand  necessary 335,  33R 

goods  f)btained  by,  replevin  for 306 

FRAUDULENT  PURCHASE, 

what  is 304  «'^  seq. 

must  be  some  positive  fraudulent  representations 307 

iniKHietit  vendor  may  rescind  or  may  aflirm 297,  385,  886 

distinct imi  bet\ve»Mi,  and  theft 300,  309 

FRAUDULENT  PURCHASER, 

takes  v(jidal>k'  title 297 

takes  a  title  K'ood  until  avoided 309,  335,  836 

carinijt  avoid  tiie  sale     297 

rei»levin  aKainst,  by  vendor 299-808 

diliKencB  re<juir<'d  of  one  to  reBcind 307,  30H 

vendor  can  rf*[»l<'vy  from  attaching  creditorB  of i\0!> 

vend(jr  can  rejilevy  from  iiHsignee  of 305 


746  INDEX. 

FRAUDULENT  PURCHASER— Co?i/m»ed.  mq« 

transfer  of  goods  obtained  by,  to  pay  creditors 187 

vendor  may  reclaim  goods  obtained  by  insolvent  upon  credit 

by  misrepresentation 59,298 

not  where  the  misrepresentation  was  innocent 298 

representations  to  third  person  intended  to  be  communicated, 

e.  g.  to  Commercial  agency 298 

representations  in  annual  report  of  corporation 298 

goods  purchased  by  insolvent  upon  credit,  with  intent  not  to 

pay 298 

mere  embarrassment  not  ground  to  rescind 299 

and  concealment  of  known  insolvency  is  not  fraud- 
ulent unless  there  be  an  intent  not  to  pay 298 

purchase  with  intent  not  to  pay,  fraudulent,  though 

no  representations  made 299 

rescission   not  allowed  against  an    innocent    third 

person 299 

sale  for  cash,  and  possession  obtained  without  payment 299 

subsequent  participation   in  the   fraud  equivalent    to  pre- 

.  concert 299 

•.                vendor,  in  order  to  rescind,  must  have  relied  on  the  false  rep- 
resentation       300 

must  rescind  at  earliest  possible  moment 300,  301,  302 

must  refund  what  he  has  received 301 

exceptions 301 

need  not  refund  buyer's  expenses  or  disbursements. .     301 
suiTender  of  note  given  for  tiie  goods,  if  made  upon 

the  trial,  is  in  time 301 

vendor,   failing  to  obtain  the  goods  by  the  replevin,  may 

not  afterwards  sue  for  the  price 303 

suing  for  the  price,  may  not  afterwards  reclaim  the 

goods 302 

otherwise,   if  the  action   for  the  price  is  without 

knowledge  of  the  fraud 302 

evidence,  insolvency  of  the  buyer  effect 302 

of  other  frauds,  or  of  unusually  large  purchases 302 

declarations  of  each  party  to  the  fraud,  admissible 

against  the  others 303 

purchaser  from   fraudulent  purchaser   must    prove 

good  faith  and  value  paid 303" 

cases  contra 303 

in  New  York  vendor,  where  goods  obtained  by  fraud,  have 
been  attached  by  creditors  of  the  fraudulent  purchaser, 

^  before  rescission,  cannot  replevy 302,  303 

cases  contra 303 

sheriff,  attaching  goods  obtained  fraudulently  by  the  de- 
fendant in  the  attachment,  and  wlio  is  sued  in  replevin 
by  the  vendor,  has  the  burden  of  showing  his  levy  and 
the  authority  under  which  it  was  made 303 


INDEX.  747 

PAGE 

FRAUDULENT  REPRESENTATIONS, 

as  to  credit,  replevin  lies , 335,  336 

as  to  solvency,  avoids  sale  304 

FRAUDULENT  SALE, 

to  avoid  writ 136 

FRAUDULENT  MIXTURE  OF  GOODS, 

all  belong  to  innocent  party 170  et  seq. 

FREEMAN  r.  HOWE. 

rule  in,  discussed 258  et  seq. 

G. 

GARNISHMENT, 

of  mortgagee  in  possession,  without  eflfect 236 

of  common  carrier,  for  goods  in  his  hands,  for  carriage 295 

GENERAL  DESCRIPTION, 

what  is  a  sufficient 161 

GENERAL  DENIAL, 

evidence  under  plea  of 219 

GENERAL  ISSUE, 

strictly  speaking,  none  in  replevin 700 

GIFT, 

not  sufficient  to  sustain  replevin  without  delivery 66,  166 

what  amounts  to  delivery 57 

may  be  effectually  made  by  parent  to  child,  though  the  gift 

remains  on  premises  of  parent 66,  67 

and  by  husband  to  wife 57,  66 

symbolical 62,  67 

according  to  the  nature  of  the  thing,  cumbrous  things  need 

not  be  removed 67 

GOOD  FAITH  OF  AN  OFFICER, 

no  protection  against  illegal  acts 260  et  seq. 

when  no  defense 333,  334 

GOOD  ORDER, 

goods  returned  must  be  in  as,  as  when  taken 374,  375 

GOODS, 

lost  at  sea,  lien  of  salvors 126 

Bold  on  condition,  execution  against 313 

wrongfully  seized  on  execution,  owner  may  replevin 236 

when  returned  must  be  in  as  good  order  as  when  taken. .  374,  375 
purchaHed  from  bulk,  replevin  does  not  lie  ft)r  unless  sepa- 
rated or  distinguislied IQ'S  et  seq. 

injured  in  defendant's  possession  he  is  responsible 371,  375 

GRAIN. 

mixed  with  similHr  grain  belonging  to  another 173  et  seq. 

GROWING  CROPS.    See  Crops. 

replevin  for '•■'>.  !•'< 

harvested  after  ejectment IM' '"'  «'•'/• 


748  INDEX. 

PAGE 

GUARDIAN, 

may  sue  for  property  of  his  ward 525 

demand  by,  when  sufficient 343,  344 

liability  of  on  bond  personal 387 

H. 

HOTEL  KEEPER.    See  Inn  Keeper. 
HOUSE, 

when  replevin  lies  for 92 

mortgagee  may  recover 101 

HIRER, 

for  a  special  purpose,  cannot  use  it  for  another 333 

when  his  interest  may  be-  sold  on  execution 107 

See  Bailee. 
HUSBAND  AND  WIFE, 

wife  may  replevy  her  separate  goods,  taken   for  husband's 

debts 73 

or  the  product  of  her  lands 72 

in  Missouri,  may  replevy  separate  goods  from  hus- 
band        72 

husband  may  not  replevy  from  wife,  goods  exempted  to  lier 

by  statute 72 

nor  goods  which  she  holds  as  bailee  or  depositary. ..       73 

nor  create  a  lien  upon  the  product  of  her  lands 73 

liable,  if  wife  wrongfully  detain  the  goods    of  an- 
other on  his  premises 81,  82 

cases  contra 345 

demand  upon  husband  sufficient,  where  there  is  a  joint  pos- 
session       341 

or  of  wife,  where  husband  cannot  be  found 341 

I. 

IDENTIFICATION, 

of  the  goods  sued  for,  strictness  of  the  rule 154  et  seq. 

replevin  does  not  lie  unless  goods  can  be  identified 164  et  seq. 

IDENTICAL  GOODS, 

must  be  returned 374 

writ  of  return  must  show 447 

after  a  change  of  form   177  et  seq. 

INCREASE  IN  VALUE, 

pending  an  appeal,  is  to  be  allowed  for  in  appellate  court, 
though  the  value  so  increased,  exceeds  the  jurisdiction 

^  of  the  court  a  quo 373 

no  allowance  to  defeated  party,  for  an  increase  in  value  dur- 
ing the  wrongful  detention 493 

allowed  to  successful  party 463 


INDEX.  749 

PAGE 

INDEMNITY, 

officer  may  demand 275  et  seq. 

INFANT, 

avoiding  payment,  replevin  lies  for  goods 311,  534 

need  not  formally  renounce  a  sale  made  by   him, 

mere  demand  suffices 73 

acquisitions  after  emancipation,  not  repleviable  bj'  parent.. . .     72 

INJURY, 

to  goods  while  in  defendant's  possession,  who  responsible.  374,  375 
to  property  pending  suit,  effect  of 422,  423 

INN  KEEPER, 

has  a  lien  on  goods  of  guest 118 

as  to  lien  of,  on  horse  stolen  and  left  with 2U6 

INNOCENT  PURCHASER.    See  BONA  Fide  Purchaser. 

replevin  against 335,  336 

ignorance  does  not  excuse 333,  334 

of  stolen  goods  cannot  resist  the  owner 289,  333,  334 

from  plaintiff  in  replevin  pending  suit 486,  487 

of  goods  taken  by  trespass 290 

from  fraudulent  taker,  cannot  resist  the  owner 2T)0 

distinction  between,  and  one  wlio  takes  goods  in  payment 

for  debt 311,  312 

from  fraudulent  purchaser,  replevin  does  not  lie  against...  297,  309 

of  goods  bouglit  witli  counterfeit  money 305 

pledgee,  or  mortgagee,  not  so  regarded 311,  312 

of  mortgaged  goods,  mortgagee  may  replevin 291,  292 

from  bailee  without  autliority 291,  292  et  seq. 

from  one  who  took  goods  of  principal   from   an  agent  for 

debt 294,  296 

from  thief,  may  affirm  the  contract  against  the  tliief 290,  291 

of  goods  sold  on  condition,  replevin  lies  for 312,  313 

wlio  change's  form  of  cliattels  may  liold 178,  179 

from  wrongful  t:iker,  demand,  when  necessary 325 

of  stolen  goods,  not  entitled  to  demand 825 

wlien  liable  for  value 290,  291 

INTEREST, 

judgment  draws 465 

as  a  measure  of  damages 463,  464 

when  f>nly  j).irt  of  the  goods  are  obtained 465 

from  wliat  time  comiHited 465 

on  value  from  time  of  con  version,  under  English  statutes  470  et  Hrq. 

not  allowed  with  value  (if  use 493 

and  not  vjilue  of  use,  when  allowed 493,  494 

when  tlie  ronteHt  is  on  the  validity  of  sale 465 

where  tlic  dcfiMidant  is  a  stakeholder 466 

wlien  plaintiff  fails  to  furnisli  bond 465 

allowtid  in  an  action  on  bond 465 


750  INDEX. 

INSECURITY  CLAUSE, 

in  chattel  mortgage,  effect  of 184 

INSOLVENT  PURCHASER, 

may  return  goods  to  vendor 307 

INSOLVENCY. 

of  securities,  court  may  order  new 367 

fraudulent  representation  as  to  solvency  avoids  sale 304 

will  not  avoid  purchase  made  in  good  faith 307 

believing  himself  solvent  307 

omission  to  disclose  will  not  avoid  a  sale 307 

INSOLVENT  LAWS, 

contesting  creditors  cannot  claim  under 672 

INTERVENTION.     See  Parties, 

INTOXICATING  LIQUORS, 

seized,  not  repleviable 241 

contra,  when  ordinance  is  void  242 

sold  to  violate  law,  replevin  does  not  lie  for 306 

ISSUE, 

change  of,  by  agreement , 578,  652 

J. 

JEWELS, 

replevin  lies  for,  if  identified 160 

JOINT  OWNERS, 

must  join  in  a  suit  for  joint  property 145,  635  et  seq. 

owners  of  different  interests  cannot  join 520 

must  join  in  avowry 615 

JOINT  TENANCY, 

appearing  in  the  writ,  the  court  will  abate  it 142 

pleaded  in  abatement  or  in  bar 149 

as  a  matter  of  defense 144 

an  issue  to  be  tried 144 

owners  of  different  interests  cannot  join  in  replevin .520 

of  grain,  when  replevin  by  lies 173  et  seq. 

one  maj''  have  exclusive  right  to  possession ...  149 

one  cannot  sustain  replevin  against  another  141 

or  against  a  stranger 146 

one  may  recover  on  former  possession 146 

severance  of 149  et  seq. 

must  have  joint  judgments 520 

damages  as  between 500 

damages,  how  awarded  to  one 297,  500 

return  adjudged  wlien  parties  are 446 

payment  of  rent  to  one  of  two 614 

JUDGMENT, 

in  replevin 36 

by  default 644 

must  be  certain 643 


INDEX.  751 

PAGE 

JUDGMENT— Continued. 

what  it  must  determine 642,  643 

must  determine  all  issues  as  to  all  parties 643 

form  of.  in  several  States 645,  646 

may  be  good  as  to  some,  bad  as  to  other  defendants 643 

may  be  for  separate  parties 646 

or  separate  articles 647 

for  different  parts  of  property,  for  each  party 551 

effect  of  in  particular  cases  649 

for  value  when  rendered 466 

effect  of,  for  value 648 

when  it  does  not  effect  title 649 

for  dismissal  does  not  affect  title 649 

for  sum  demanded,  error  unless  found 633 

for  value  of  limited  interest 650 

only  rendered  wliere  return  would  be  proper 438 

in  alternative  for  goods  or  value 644,  645 

exceptions  to  tiiis  rule 645.  646 

defendant  entitled  to  alternative,  for  return  or  value.  ..466  et   seq. 

as  in  favor  of  joint  owners  must  be  found. . .    520 

for  damages  cannot  be  rendered  unless  found    460 

where  property  is  lost  or  destroyed .502,  650 

cannot  be  for  value  when  party  has  property 466,  644 

where  plaintiff  does  not  ask  delivery 139,  140 

on  a  count  in  trover 650 

where  goods  are  delivered  without  bond . .  .349,  350 

order  for  delivery  in . 647 

for  delivery  after  trial 447 

for  return — 

no  arbitrary  rule  governing 445 

only  rcndeied  after  investigation 435,  436 

when  should  be  rendered 446 

never  given   unless  the  plaintiff  obtained  the  prop- 
erty on  the  writ ....443,444 

controlled  by  rights  of  parties  when  rendered 441,  442 

not  a  bar  to  anotiier  action  of  replevin 440 

does  not  affect  title 619 

when  not  evidence  of  title 4  10 

defendant  has  no  option  to  pay  value 374,  375 

may  1x3  to  one  of  .several  defendants 406 

defendant  entitled  to  rea-sonable  time  to  comply  with     OlM 

may  Ije  for  part  of  the  jtroperty 400 

may  l>e  fr>r  part  of  projHjrty  to  one  defendant  an<l 

part  t  o  another 406 

when*  pro|HMty  is  lost  or  destroyed 4  Ifi 

of  propcirty  not  d»divered  erroneous 444 

not  rendered  uidess  defendant  show  n  right  to. . .   436,  437 
not  rendered  unlens  the  gocxlH  were  d<divt>red.  .  .  .   4i;i,  411 


752  INDEX. 

JUDGMENT— CoM^HHod.  paoe 

when  parties  are  joint  tenants 446 

not  necessary  to  constitute  a  breacli  of  other  condi- 
tions   370,  371 

is  a  breach  of  the  condition  to  return 376,  378 

for  young  of  animals  born  pending  suit 443 

on  bond,  form  of 396,  397 

in  suit  on  bond  for  jjenalty 396,  397 

liow  satisfied 396,  397 

not  rendered  in  proceeding  of  distress 612 

must  conform  to  tlie  statute 651 

determine  the  right  as  to  all  the  goods  demanded. . .     651 

whether  replevied  or  not 651 

informality  not  regarded 651 

cannot  be  entered  against  all  the  defendants  on  stipulation 

of  part  only 651 

where  defendant  holds  tlie  goods  as  a  pledge,  the  judgment 
may  direct  the  return  "  to  be  holden  as  security  "  for 

the  amount  duo 653 

may  determine  plaintiff's  interest,  though  the  suit  was  pre- 
mature       652 

in  favor  of  several,  some  having  no  interest,  is  error 652 

that  plaintiff  "retain  the  goods  replevied "  and  recover  tiie 

value,  not  injurious  where  notliing  was  replevied 652 

must  follow  the  pleadings  and  the  verdict 652 

must  describe  the  goods,  either  by  words  or  reference  to  the 

pleadings 653 

must  determine  tlie  rights  of  all  parties 653 

in  some  states,  must  show  the  separate  value  of  each  article.     653 
may,  in  some  cases,  be  apportioned,  as  between  the  several 

defeated  parties 662 

may  be  rendered  for  or  against  any  one  or  more  of  several 
defendants  ;  or  for  or  against  any  one  or  more  of  several 
plaintiffs  asserting  a  joint  ownership  ;  or  for  plaintiffs  as 

to  part,  and  for  defendants  as  to  the  residue 667 

the  recovery  must  be  for  distinct  and  separate  articles,  and 

not  for  undivided  interests 668 

in  such  case  each  party  recovers  costs 668 

the  defendant  must  demand  judgment  in  the  court  of  first 

instance 666 

equitable  relief  may  be  granted 668-671 

presumptions  in  sui)port  of  judgment 668 

judgment  for  the  plaintiff,  for  the  goods  :  plaintiff  claiming 
under  a  mortgage,  is  entitled  to,  for  all  the  mortgaged 

goods 653 

so,   where   both   parties  claim   under   mortgages  from   the 

same  mortgagor,  and  plaintiff  is  adjudged  senior 654,  655 

no  judgment  for  delivery,  where  plaintiff  has  obtained  the 

goods  under  the  writ 653 


INDEX.  753 

JUDG'M.ENT:— Continued.  ''*°*' 

plaintiff  prevailing,   is  entitled  to  judgment  for  the  goods 

though  no  writ  of  replevin  issued 653 

or,  to  such  part  as  he  shows  title  to 653 

though  no  damages  are  assessed 653 

or  the  value  is  not  found 654 

judgment  wliere  defendant  relinquishes  the  goods,  or  part 

of  them 653 

judgment   for  return   to  defendant :   generally  awarded   if 

plaintiff  fails 654 

even  tliough  plaintiff  fails  on  technical  grounds 654 

not  if  defendant  was  not  in  possession  at  the  institu- 
tion of  tlie  suit 655 

nor  for  plaintiff's  mere  failure  to  prove  demand  ;  nor 
where  defendant  disclaims,  or  his  riglit  expires 
pending  the  action  ;  nor  where  defendant  denies 
detention  and  asserts  no  claim  ;  or  defendant  is  a 
mortgagor  in  default,  though  the  goods  were 
taken  from  him  by  force,  and  unlawfully  ;  or 
defendant  is  an  officer,  and  tlie  goodsare  exempt, 
thougli  tlie  statute  prohibits  replevin  against  an 
officer  ;  or  the  defendant  shows  no  right  in  him- 
self ;  or  his  pleas  fail  to  assert  title  ;  or  plaintiff 
is  entitled  to  possession  at  tlie  trial,  though  not 

at  the  institution  of  the  action 655 

otherwise,  where  plaintiff's  only  claim  is  a  lien  ac- 
quired after  a  wrongful  taking 655 

or  defendant  has  given  bond,  and  retained  the  goods  ; 
or  others  acting  with  him  have  replevied  the 
goods  from  plaintiff  ;  or  defendant  has  by  any 

means  obtained  possession 656 

where  plaintiff  discontinues,  otiier  defendants  cannot  demand 

return  of  the  goods  to  sheriff  from  whom  they  were  taken    655 
nor  can  one  defendant  who  disclaims  demand  return  to  his 

co-defendant  who  makes  default 656 

the  statute  allowing  return  or  the  value,  the  court  may  omit 
the  judgment  for  return,  wherever  justice  requires, 
e.  g.,  where  defendant's  right  has  expired,  and  he  would 
be  required  to  immediately  surrender  to  the  same  plain- 
tiff in  a  second  replevin 656 

return  will  be  awarded   to  defendant  who  has  a  valid  lien, 

though  the  proceedings  to  enforce  it  were  irregular 652 

fitiding  of  value  not  necessary  to  entitle  defendaut  to  judg- 
ment of  return 656 

return  will  not  bo  awarded,  where  the  court  is  without  juris- 
diction        6r)7 

<ra<M»s  contra 057 

nor  where  return  is  ncit  demanded  by  the  auHwer.  .  .     657 
4& 


754  INDEX. 

PAOC 

JUDGMENT-  Confmncd. 

cases  centra 657,  658 

judgment  for  tlie  value  ;  where  the  statute  allows  plaintiff  to 
go  for  the  value  :  iti  case  the  officer  fails  to  take  the  goods, 
there  must  be  diligent  effort  on  tiie  part  of  the  officer. . . .     684 
at  what  time  plaintiff  may  make  bis  election  to  proceed  for 

the  value 684 

where  mortgagee,  without  previous  demand,  replevies  from 
one  in  peaceable   possession,  and   defendant  disclaims, 

judgment  will  not  be  allowed  for  the  value 339 

alternative   judgment:    where   the  statute   so    directs,   the 

judgment  must  be  in  tlie  alternative 658 

defeated  party  may  insist  upon  it,  though  the  other  waives 

the  alternative 658 

cases  contra :   660 

defendant  prevailing,  has  judgment  for  all  the  goods,  or  the 

value  of  all 654,  655- 

though  some  of  the  animals  replevied  die,  pending 

tlie  suit 655 

though  plaintiff  fail,  defendant  is  not  entitled  to  judgment 

for  the  value,  if  he  has  no  interest 658 

if  the  prevailing  party  be  in  possession,  he  is  not  entitled  to 

alternative  judgment 658 

alternative  judgment  will  not  be  entered,  where,  no  bond 

being  given,  the  action  proceeds  for  the  value,  merely. . .  658 
nor,  will  there  be  judgment  for  return,  wliere  the 
goods  have  been  destroyed  while  in  plaintiff's  pos- 
session ;  or  indistinguishably  confused  with  other 
goods ;  or  all  the  goods,  or  substantially  all  of 
them,  have  been  sold  and  cannot  be  returned  ; 
or  the  defeated  plaintiff  has  allowed  a  lien  to 

accrue  upon  them 059 

nor  need  the  judgment  contain  an  alternative,  if  de- 
fendant, by  an  injunction,  has   prevented   the 

replevy  of  the  goods 661 

an  alternative  judgment  is  not  erroneous,  though  the  goods 

cannot  be  returned 659 

an  absolute  judgment  for  the  value  is  equivalent  to  a  declara- 
tion that  return  cannot  be  had 659 

defendant's  prior  possession  entitles   him  to  judgment  for 

the  value,  when  plaintiff  shows  no  right 659 

defendant  entitled  to  the  value,  though  he  is  a  mere  bailee  .     659 
where  a  portion  of  the  goods  have  been  sold,  and  the  rest 
voluntarily  surrendered  before  trial,  absolute  judgment 

for  the  value  of  those  .sold  is  proper 659 

where  the  successful  party  has  only  a  special  interest,  he 

^  takes  judgment  for  the  value  of  that  interest  merely 660 

cases  contra 66(V 


INDEX.  755 

PAQX 

JUDGMENT— Coufmued. 

only  when  the  adversary  party  is  the  general  owner    661 
and  the  value  of  the  special  interest,  or  the  amount 

of  the  claim,  must  be  shown 661,  663 

judgment  for  the  value  of  the  interest  must  not  exceed  the 

general  value GCO 

vendor  replevying  for  default  in  the  price,  defendant  pre- 
vailing is  entitled   to  return,  or   the  value,  less   what 

remains  unpaid  of  the  price 660 

if  the  defeated  plaintiff  have  an  interest  at  tlie date  of  the 

trial,  even  though  he  had  no  interest  at  the  institution 

of  his  suit,  he  is  to  he  allowed  tlierefor 661 

plaintiff  suing  for  gold  coin   recovers  only  the  face  value, 

though  his  judgment  may  be  satisfied    in  depreciated 

currency 661 

successful  party  cannot  recover  as  the  value,  a  greater  sum 

than  he  luis  alleged  as  tlie  value,  in  his  pleadings 661 

but  tlie  plaintiff  may  have  judgment  for  the  value,  though 

he  makes  no  demand  for  the  value  in  his  complaint 662 

of  what  date  tlie  value  is  to  be  estimated 668 

and  at  wiiat  place 662 

party  ma)'  recover  the  value  to  liim,  in  certain  cases,  though 

the  goods  are  of  little  or  no  value  to  others 662 

the  judgment,  in  some  cases,  may  be  apportioned  among 

several  defeated  parties 662 

entry  and  authentication:   judgment   against   executor   or 

administrator :   522 

not  to  be  entered  between  original  parties  until  the  claim  of 

an  interpleader  is  settled 666,  667 

entered  by  the  clerk,  without  any  order  of  the  court,  void. . .     667 
an  alteration  of  the  record  is  a  forgery,  and  equity  may  grant 

relief 667 

clerical  errors  disregarded 668 

assignment  :  ("irries  the  bond 667 

the  court  may   impose  conditions,   for  the  i)rotection  of  all 

parties 068-671.  685 

enforcetl  by  execution,  an<l  not  by  process  for  contemjjt 667 

return   of    the  sherifl  upon   the    writ  of  retorno,   tiiat    tlm 

goods  are  not  found,  is  conclusive 667 

equitiible  relief 668-671 

construction  and  effect;  does  not  conclude  the  officer,  when 

sued  for  not  taking  bond,  or  taking  an  insiifTlcient  bond     .163 

binds  till!  surety  in  tin-  bond 408 

though  it  was  tbi-  result  of  comproniiHe 384 

CODclUflive  siH  U)  tlie  value 408,  413 

as  to  [>l!iiMtilT's  iiitereHt 413 

and  tin'  title  wimre  iti  issue 41.'1,  417 

not  as  to  the  title,  unless  this  was  in  issue 41.'l,  &i^ 


75G  INDEX. 

JUDGMENT— ro»f!«Hcc/. 

concludes  all  parties  and  privies 663,  664 

but  only  as  to  the  matters  in  issue 663 

and  only  as  to  the  precise  question   raised  and  de- 
termined       665 

discontinuance  no  bar  to  trespass  for  taking  the  goods    664 

for  bailor  concludes  bailee,  but  not  vice  I'ersa 665 

qua're,  when  the  bailor  conducts  the  defense 665 

alternative  judgment  for  plaintiff,  though  satisfied,  does  not 

bar  plaintifl's  action  for  conversion 665 

must  be  construed  with  reference  to  the  pleadings 663 

for  plaintiff,  merely,  imports  that  he  is  entitled  to  nominal 

damages  and  costs 651 

and  immediate  possession  of  the  goods 663 

not,  where  there  are  special  findings,  and  none  upon 

this  issue 663 

judgment,  that  the  suit  be  dismissed,  and  the  writ 

of  retorno  awarded 663 

judgment  tliat  plaintiff  and  defendants  are  tenants  in  com- 
mon, and  therefore  directing  discontinuance 663 

judgment  of  dismissal 663 

judgment  of  discontinuance,  and  return  of  the  goods — no 

bar  to  an  action  of  trespass. .    . 664 

or  trover 664 

judgment  of  retorno,  not  performed,  no  bar  to  a  cross  replevin     664 
judgment  for  possession  of  a  promissory  note,  barred  by  limit- 
ation while  detained, — no  bar  to  an  action  for  detaining 

it  until  barred 664 

judgment  of  another  state :  effect  accorded  to 662 

JURISDICTION, 

what  court  has,  for  property  levied  on 257 

as  to  property  in  tlie  county  when  writ  issued 421 

not  affected  by  want  of  bond 352 

goods  taken  under  process  of  one  court  may  be  replevied  in 

any  other  court  of  competent  jurisdiction 237,  265 

even  though  taken  under  process  from  the  Supreme 

Court  of  the  State 337 

no  court  has  jurisdiction  to  summarily  impound  commercial 
paper,  where  the  title  is  disputed  ;    the  order  gives  no 

immunity  to  an  action 241 

consent  cannot  confer 266 

is  not  dependent  upon  the  seizure  of  the  goods ;  or  issuance 

of  the  summons 266 

statute  allowing  return  only  when    demanded  ;   judgment 

for  return  not  demanded  is  void 266 

cases  contra 657 

depends,  as  to  value,  upon  what  is  alleged 266 

objections  to  the  jurisdiction  must  be  made  in  the  first  instance    266 


INDEX.  757 

PAGE 

JURISDICTION— Co7i/jnned. 

where  the  affidavit  is  jurisdictional,  its  absence  is  fatal ;  no 

plea  to  the  jurisdiction  of  an  inferior  court  necessary. . . .  266 
the  jurisdiction  is  not  lost  by  an  adjournment  toa  legal  holiday  267 
not  ousted   by  mere  averment  that  the  value  exceeds  the 

jurisdiction 267 

nor  by  the  plaintiff's  voluntary  discontinuance 267 

where  the  value  exceeds  the  jurisdiction  remittitur  will  not 

cure  the  excess 267 

judgment  may  be  given  upon  an  appeal,  though  the  value 

found  exceeds  the  jurisdiction  of  the  court,  a  quo 267 

the  value  found  exceeding  tlie  jurisdiction,  the  party  suc- 
ceeding may  have  judgment  up  to  the  statutory  limit. . .     267 
increase  in  value,  pending  appeal,  to  be  allowed,  though  in 

excess  of  jurisdiction  of  tlie  court  a  quo 373 

where  by  statute  exclusive  jurisdiction  of  the  administration 
of  an  insolvent  estate  is  conferred  upon  a  particular 
court,  replevin  will  not  lie  in  any  other  court  for  goods 

included  in  the  assignment 268 

how  the  jurisdiction  is  affec;ted  b}'  bankruptcy 268 

things  severed  from  realty  in  one  state  and  carried  into  another    268 
goods  held  under  the  process  of  the  Federal  Court  cannot  be 
replevied  in  the  State  Court ;  nor  those  held  under  pro- 
cess of  the  State  Court  replevied  in  the  Federal  Court  260-269 
receiver  of  a  national  bank  claiming  effects  not  the  prop- 
erty of  tlie  bank,  does  not  exclude  the  jurisdiction  of  the 

State  Courts 238 

upon  appeal,  limited  to  that  of  inferior  court 373 

not  wliere  the  jurisdiction  of  the  lower  court  is  exceeded  by 

an  increase  in  value  pending  the  appeal 375 

JUSTICE  OF  THE  PEACE, 

jurisdiction 687 

I)ractice  and  judgment 689 

JUSTIFICATION, 

plea  of  by  officer  must  show,  the  command  of  his  writ 279 

L. 

LAND, 

title  to,  when  evidence  in  replevin 96  c^  seq. 

LANDLORD; 

lien  of,  gone  by  replevin  of  the  goods  detained 423,  A'iA 

mea-sure  of  damagt-g  awarded  to.  . .  .    397 

cannot  diMtrain  twice  for  samo  rent 614,  615 

stipulation  that  crf^w  n-main  tlie   property  of  the  landord, 

valid 147 

landlord  in  the  owner  of  tho   whol«<  until  <livision,  and  may 

have  replevin  for  tlie  wliolu  againut  axMigneo  of  tenant.       147 


758  INDEX. 

PAOB 

LANDLORD— Co«^//i!<cci. 

lease  upun  shares,  landlord  and  tenant  are  tenants  in  com- 
mon of  the  crop 145 

if  tenant   is  to   make  division    and  refuses,  landlord    may 

have  replevin  for  his  share 147 

cases  contra 147 

the  mere  lien  of  the  landlord  will  not  sustain  replevin 125 

cannot  be  enforced  by  forcible  seizure  of  the  crop.. .     124 
tenant  may  not  remove  any  part  of  the  goods  upon  which 

tlie  landlord  has  the  lien 123 

tenant's  sale  of  his  interest  in  the  crop  does  not  displace  the 

landlord's  lien 123 

LARCENY.    See  Theft. 

LEGAL  TITLE, 

will  prevail  over  equitable 110 

LENDER, 

when  he  must  demand  goods 331 

LEVY, 

by  an  officer  confers  right  to  possession 126 

what  necessary  to 127 

without  possession  taken  does  -not  entitle  the  officer  to  re- 
plevy   127 

on  mortgagor's    interest,    not    effected   by  trustee  process 

served  on  mortgagee  in  possession 236 

confers  special  property 279 

replevin  lies  where  it  is  wrongful .' 241 

when  not  a  conversion 328 

on  bulky  articles ...  134,  135 

on  goods  of  a  third  person  by  his  procurement 175 

does  not  confer  possession  on  creditor 134,  135 

of  tax  warrant,  irregular  cannot  be  contested  in  replevin  218  et  seq. 

LIABILITY, 

on  bond,  delivery  on  writ  must  precede 380 

defendant  liable  to  plaintiff,  who  prevails,  independent  of 
the  bond  ;  e.  g.  where  he  retains  the  goods  under  forth- 
coming bond  and  sends  them  out  of  the  state 364 

collection  by  the  sheriff  of  the  judgment  for  the  value,  plain- 
tiff refusing  to  receive  it,  no  bar  to  the  action 364 

LIBERTY. 

what  is  a  9 

sheriff  could  not  enter 8 

sheriff  authorized  to  enter  without  writ 9 

non  omittas,  authorized  the  sheriff  to  enter 8 

LIEN, 

of  execution,  a  continuing  lien 381 

of  distrainor,  lost  by  replevin  of  the  goods 424 

of  the  taker  up  of  an  estray 118,  119 


INDEX.  759 

PAGE 

Z,TE^— Continued. 

finder  has  no,  for  expenses  voluntarily  incurred 116 

of  officer  on  goods  levied  on 1 26,  127 

of  innkeeper 118 

carrier  or  innkeeper  cannot  assert  against  owner  of  stolen 

goods 337 

holder  of,  entitled  to  possession  may  sustain  replevin.  117,  118,  119 

finder  of  lost  property  has,  for  reward 116 

defendant  claiming,  must  specifically  assert 345,  346 

of  landlord,  effect  of  replevin  upon 621 

lost  by  replevin  of  the  goods  423,  424 

of  factor  on  goods 118 

damages  when  successful  party  had  only 494 

of  salvors 120,  126 

mere    right  of,  without    possession,   will    not    sustain    re- 
plevin  55.  123,  124,  127 

possession  with  lien  suffices 73 

executor  coming  into  possession  of  the  goods,  subject  to  a 

lien,  entitled  to  have  it  ascertained 124 

acquired  only  by  contract,  or  by  force  of  law 119 

^  without  agreement  none  given  for  purchase  money  of  chat- 
tels     119 

nor  for  mere  labor  thereon  e.  g.  cleaning  a  carpet. 119,  120 

tenant  in  common  paying  the  whole  price,  has 120 

or  feeding  and  sustaining  the  animal,  the  subject  of  the  com- 

/  mon  tenancy 120 

trespasser  lias  none  for  improvement  of  another's  chattels.  120,  178 
nor  assignee  for   creditors  advancing   freight   upon 

goods  whicli  assignor  obtained  by  fraud 120 

I  nor  principal   whose  agent  accepted  the  goods  for 
storage  free,  without  authority,    the   principal 

silently  retaining  them 120 

nor    mechanic  agreeing   to    make   repairs   without 

(  rliarge  in  consideration  of  other  work 120 

nor  broker  upon  money  deposited  with  him  for  the 

purchase  of  land 120 

agister's  lien,  given  tmly  by  statute 120 

all  conditions  of  tlie  statute  must  be  complied  with  .     120 

one  wlio  sells  feed  not  entitled  to 120 

nor  a  mere  herdsman .     120 

one  who  feeds  animals  taken  under  mortgage  by  a 

HherifT  acting  officially,  entitled  to  120 

not  if  tlie  oHicer  acts  in  a  persotial  capacity 121 

none  given  for  training  race  liorseH,  or  for  money  ex- 
pon<le(l     for     jockey     fees  ;     shoeing  ;    entrance 

money  or  the  like 121 

none  for  the  cam  of  a  race  horse  under  an  agreement 

to  dividi;  tlic  winningH  121 


760  INDEX. 

PAGE 

LIEN— Continued. 

ordinarily  held  inferior  to  a  prior  chattel  mortgage  .    121 

cases  contra 121,  200,  201 

boom  companies,  lien  upon  logs 123 

waiver  or  loss  of  lien,  by  surrender  of  possession 121,  122 

not  for  a  temporary  purpose  ;  nor,  as  to  part,  by  sur- 
render of  the  residue  ;  nor  by  permitting  acts  to 

be  done  for  the  benefit  of  the  goods 122,  123 

by  plea  of  title 121 

not  if  both  title  and  lien  are  pleaded 121 

carrier  permitting  damage  to  the  goods  equal  to  tlie 

freight 122 

by  demand  of  an  excess!  ve  sum 122 

by  unqualified  refusal  of  owner's  demand. . . .     122 

not  by  mere  silence 122 

nor  if  all  the  facts  are  stated 122 

by  tender  of  the  amount  due 122 

by  lien  holder's  pledge  of  the  goods  as   his  own  or 

other  misconduct 122 

not  by  irregularities  in  attempting  enforcement  of 

the  lien 652 

waiver  of  lien  in  favor  of  one  does  not  avail  another 123 

boom  company's  hen  not  lost  by  detaining  an  excessive  num- 
ber of  logs,  acting  in  good  faith 123 

singular  statutory  provisions  in  Florida 123 

lien  holder  entitled  to  possession 123 

how  enforced  ;  claimed  under  a  statute  must  conform  to  the 

statute 124 

lien  holder  must  pursue  legal  methods 124 

attacliment 124 

two  entitled  to  a  lien,  one  may  assert  it 124 

separate  liens  may  not  be  asserted  by  several  defendants. . . .     124 
execution  lien  superior  to  lien  of  mechanic  acquired  subse- 
quent to  delivery  of  the  writ 124 

LIMITED  INTEREST, 

verdict  in  such  cases 631 

judgment  for  amount  of 650 

value  of,  as  damages  allowed 397,  494 

LIMITATIONS. 

form  of  pleai 679,  680 

to  .suit  on  bond 398 

when  statute  commences  to  run 679.  680 

against  officer 079,  680 

title  acquired  by 680 

what  possession  adverse 680 

statute  may  be  waived  by  agreement 680 

LIQUORS, 

sold  to  violate  law  returned  to  sheriff 445,  446 


INDEX.  7^1 

PAGE 

LIVE  STOCK, 

increase,  of  the  average  increase  of  like  animals  evidence  of.     443 

may  be  demanded  by  supplemental  pleading 586 

creditor  inipeacliing  sale,  nut  entitled  to 443 

tenant  entitled  to.  but  required  by  his  lease  to  main- 
tain it  during  the  term,  gives  no  title  by  an  in- 
termediate siile 58 

defendant  not  allowed  the  cost  of  maintaining,  in  mitigation 

of  damages 514 

allowed  the  cost  of  maintaining,  pending  an  appeal  in  which 

he  prevails 514 

LOST  BOND, 

how  supplied 390 

action  lies  on  tlie  supplied  copy 388 

LOST  GOODS.    See  Flnding,  Title  by, 


M. 

MALICE, 

as  affecting  tlie  question  of  damages 512 

illustration  of  the  rule 515 

officer  acting  with,  how  liable  498,  516 

of  party  does  not  affect  officer 498 

actual  must  be  .shown 513 

MALICIOUS  REPLEVIN, 

action  for 51 

MARKS  AND  BRANDS, 

sufficient  to  distinguish  goods  sold 168 

changing,  to  produce  confusion,  innocent  party  takes  all.  . .  .  172 

MARKET  OVERT, 

sale  of  goods  in 288 

unknown  in  this  country 289 

MARKET  VALUE, 

how  ascertained   473 

value  at  a  distant  market,  wlien  may  be  shown 477  et  S('<i. 

MASTER, 

may  sustain  rei)levin  for  goods  taken  from  liis  servant 525 

may  instruct  si-rvaiit  not  to  deliver  except  on  liis  order 346 

demand  on  K«;rv!iiit  for  goods  of,  not  sufficient 346 

MEASURE  OF  DAMAciKS.     See  Damages. 

rules  for  estimating 4.'J7,  468,  469 

nominal  wlieii  allowed 458 

com[H-nK<'ition  the  object  .  460 

exc<'pt  wh<Mc  m.'tlice  is  sliown   462 

how  coniiM-tisation  is  ju+ccrtained 461 

when  pi'>|nMly  is  stab!**  in  value 470 

when  value  in  fluctuating 461,  462,  470 

in  a  Mtock  M|H;culatiuD. .    473 


7G2  INDEX. 

PAOS 

MEASURE  OF  DAMAGES— Continued. 

*'  market  value,"  how  jiacertained 473 

in  case  of  wronjijful  detention 468,  469 

liigliest    value    between   tiouveision   and   judgment,    when 

allowed 470 

party  claiming  must  show  extent  of  loss 458,  459 

time  from  which  damages  are  estimated  wlien  taking  was 

wrongful 462 

same,  when  taking  was  rightful 462 

as  between  joint  owners 475,  500 

between  general  owner  and  a  trespasser 495 

as  between  officer  and  stranger 498 

pretium  affectionis,  when  allowed  to  enter  into  damages  ....     480 

between  bailee  and  general  owner 495 

when  goods  are  sold  b^-  broker  without  orders 470  et  seq. 

price  at  which  goods  .sold,  when  allowed  to  govern 480 

price  at  which  goods  were  sold  is  not 479 

between  general  owner  and  a  stranger 495 

when  the  party  liad  onlj- a  limited  interest  in  the  property  397,494 

where  title  has  terminated  before  judgment.    496 

rule  in  Suydam  v.  Jenkins  480 

in  a  suit  for  note  or  bill 474,  475,  et  seq. 

interest  not  allowed  with  value  of  use 493 

interest  as  a  measure  of  damages 463,  464 

from  what  time  assessed 465 

when  one  deprives    the  other  of  power  of    showing    real 

quality,  best  qualit}-^  presumed 473 

against  sheriff  for  wrongful  seizure 479 

at  between  officer  and  general  owner 498 

against  officer  acting  in  good  faith 497 

for  neglect  of  duty ...  499,  500 

acting  with  malice 498 

at  between  officers 500 

diminution  in  value  a  proper  element 462,  463 

loss  of  business,  how  far 484,  485 

expenses  of  suit,  counsel  fees 486-488 

loss  of  profits  of  an  illegal,  never  allowed 484,  485 

conduct  of  suit  as  affecting 472 

when  partj'  acts  in  defiance  of  right ;    516 

when  malice  is  .shown 513,  514 

-value  of  property  when  not  allowed 466  et  seq. 

value  of  use  when  allowed 491 

value  of  use  when  not  allowed 493,  494 

for  coal  dug,  or  timber  cut 507 

special  damages  must  be  specially  alleged 482 

when  defendant  has  wrought  a  change  in  the  goods. . .  479  et  seq. 

value  stated  in  affidavit  how  far  binding 481 

■where  goods  have  been  removed,  cost  of  transportation  476  et  seq. 


INDEX.  763 

MEASURE  OF  DAMAGES— CoH^jnued. 

coin ,  when  a 476 

in  suit  on   bond 396,  397 

in  suit  on  bond,  interest  on  value 4G5 

MERCHANDISE  KEPT  lOR  SALE, 

disposal  of   pending  suit 437,  428 

MINOR, 

cannot  sustani  replevin 525,  526 

MIXTURE.    See  Confusion. 

MONEY, 

when  replevin  lies  for 88,  89,  160,  161 

deposit  of  cannot  be  accepted  in  lieu  of  bond 365 

MORTGAGEOR, 

rights  of  to  chattels  mortgaged 184,  185 

has  an  interest  whicli   may  be  sold 183 

sale  of  cliattels  by,  will  not  defeat  mortgagee. . .   185,  186,  291,  293 

MORTGAGE, 

on    real   estate    how   far  title   to    chattels,    severed    there- 
from   28,  101  e«  seq. 

N.      . 

NEGLECT, 

when  not  a  conversion 133,  327 

NEGLIGENCE  IN  PROSECUTING  SUIT, 

as  affecting  question  of  damages 472 

NOMINAL  DAMAGES, 

only  allowed  unless  proof  of  actual  damage 458,  459 

awarded  without  proof  of  actual  injury 458 

NON  CEPIT, 

when  proi>er  plea G03,  604 

form  of  plea  of    60(5 

effect  of  this  plea 60.",,  60(5 

defendant  not  entitled  to  return  on 436,  437,  605,  606 

excei»tion8  to  this  rule 436 

defendant  not  entitled  to  damages  on (505,  606 

admits  every  fact  except  taking 605,  606 

NON  CEPIT  AND  NON  DKTINET, 

statutory  effect  given  to  these  pleas  substantially  sjime  as 

general  issue 436,  (>03,  604 

NON  DETINET, 

when  proj»er  in  replevin (503,  604 

general  rules  gr»verning (50M,  609 

defendant  not  entitled  to  return  on 436.  437 

ex<'eptions  tf)  thw  rule 437 

admits  jihiiiitiff's  right 6(H.  609 

whether  [ilea  of  tender  proper  issue  to  charge  of  taking 607 

effect  of,  Bimilar  to  iion  cepii,  only  denies  the  detention 607 


7G4  INDEX. 

PAOB 

NON-PAYMENT, 

does  not  warrant  rescission  of  sale 312 

NOTE  OR  BILL. 

damages  in  a  suit  for 474,  475  et  seq. 

finder  of  has  not  right  to  collect 117 

NOT  GUILTY, 

verdict  of.  what  responsive  to 625 

NON-SUIT, 

effect  of 15 

judgment  of,  does  not  affect  title 649 

♦'NULLA  BONA," 

return  of,  as  to  securities  not  conclusive 349 

O. 

OBJECTIONS  TO  BOND, 

waived  by  plea  to  merits 368 

OFFICER, 

duty  on  receiving  a  writ  of  replevin 274 

power,  in  serving  a  writ 264,  265 

he  must  see  that  his  writ  is  in  form 270 

that  the  description  is  suflficient 270,  271 

that  tlie  court  had  jurisdiction  to  issue  such  a  writ  270,  271 

that  the  writ  is  valid  on  its  face 278,  279 

he  must  take  bond 273 

serve  promptly 274,  275 

search  for  the  goods 274,  275 

employ  force  if  necessary 270,  271 

deliver  the  goods  to  plaintiff 274,  275 

penalty  for  failure  to  discharge  his  duty 499,  500 

may  refuse  to  serve  when  description  is  uncertain 162,  163 

neglect  of,  suit  not  dismissed  for 609 

seizing  goods  without  authority  a  trespasser 260,  261 

when  may  break  and  enter  dwelling 272 

must  execute  process  in  a  legal  manner 270 

serving  writ  of  replevin  cannot  sever  real  estate 275 

liability  of,  for  refusing  to  take  chattels,  under  pretense  that 

they  are  real  estate 275 

defendant  bound  to  know 272 

may  demand  indemnity,  when 275  et  seq. 

cannot  take  clothing  worn  on  the  pereon 137 

how  far  protected  in  serving  writ  of  replevin 247 

cannot   take  goods  from   possession   of   a   stranger   to    his 

writ 248  et  seq. 

good  faith  of,  no  protection  against  illegal  acts  . . .  260,  261  et  seq. 

taking  by,  what  is  sufficient 134 

special  property  of,  acquired  by  levy  of  process.  126,  127,  279.  525 
levy  on  bulky  articles 134.  135 


INDEX.  7^5 

OFFICER-Co«//««ed.  ''^°'' 

levying  on  goods  of  wrong  person,  latter  cannot  replevy  if 

by  his  procurement 175 

wrongfully  seizing  goods,  replevin  lies  against 236,  237 

wrongful  levy  by.  owner  may  retake  liis  gwds  peaceably.  237,  238 
seizing  goods  for  tax  cannot  go  outside  his  bailiwick. . .  227  et  seq. 

not  an  insurer  of  goods 274   275 

liable  for  ordinary  care 274   275 

liable  for  value  of  goods  left  with  debtor 274,  275 

defense  by,  to  suit  of  replevin 281,  286 

plea  of  justification,  must  show  his  process 279,  280 

must  sliow  a  valid  judgment  in  addition  to  execu- 
tion    126,  127 

must  ask  a  return  281,  286 

defending  in  attachment,  must  show  a  debt  due 286 

with   writ  of  retorno  cannot   take  goods  from  person  not 

named 250 

mixing  goods  lo.ses  his  lien  170 

with  writ  of  replevin  not  liable  for  taking  the  goods  from 

the  defendant  named 247  et  seg. 

seizes  goods  from  defendant  named  in  Jiis  process,  demand 

necessjirj' 336 

when  entitled  to  demand ; 336 

sale  by,  on  execution  transfers  no  better  title  than  defendant 

had   286 

wrongful  seizure  and  sale  by,  does  not  affect  owner's  rights.     129 

return  of  process 277 

must  state  liis  acts 277 

tl\e  property  taken 277 

how  far  conclusive 277 

act  of  deputy  is  act  of  the  superior 276,  277 

must  .settli'  disputes  of  liis  deputies 277 

liable  for  act  of  deputy 276,  277 

damages  against,  for  seizing  exempt  property 257 

measure  of  damages  between 500 

receiptor  to.  rights  of 128 

whetiier  permitted  to  sustain  refdevin 525,  520 

atlacliing  creditor  not  jointly  liable  with 526 

acting  witli  malice,  damages  against 498,  516 

removal  or  resignation  dc^s  not  relieve  him  of  responsibility     276 

liability  of,  jMirsonal 276 

limitations  against 679,  080 

extent  of  ills  liability  in  taking  Hecnirity   273 

liable  ill  eiise  of  failure  to  Uike  bond 273 

liability  for  solvency  of  setMiritieN 273  et  stv/. 

liable  for  taking  txjnd  in  lesH  than  double  the  value  of  the 

gfxxlH 273 

may  take  goudM  to  iifipraiHe  witlioiit  bond 'I'll 


7G6  l^DEX. 

PAGE 

OFFICER— Co)i^jn?<ed. 

neglect  to  take  bond  not  a  contempt 1552 

cannot  deliver  goods  without  bond 349 

liable  as  a  trespasser  for  delivering  goods  without  bond .     351 

or  on  insufficient  bond 351 

with  execution,  must  act  at  his  peril 260,  498 

execution,  when  no  protection  to 264 

ORIGIN, 

of  replevin  unknown 1 

OWNERSHIP, 

absolute,  not  necessary  to  sustain. . .    106 

change  in,  pending  suit,  effect  of 441,  442 

bailee  claiming,  forfeits  his  riglit  to  demand 340 

question  of,  not  affected  by  delivery  on  writ 424,  425 

determined   by  result  of  suit,  not   by   delivery  on   writ  of 

replevin 422 

question  of,  not  settled  by  judgment  for  return 440 

when  settled  in  replevin  suit  cannot  be  questioned  in  suit  on 

bond :   392 

OWNER, 

meaning  of  the  term  in  this  action 542,  543 

usually  entitled  to  possession ...   39,  40,  117,  118 

of- goods  fraudulently  purchased  cannot  replevy  from  an  in- 
nocent purchaser 309  et  seq. 

taking  with  consent  of,  not  a  conversion 134 

of  real  estate  cannot  recover  chattels  severed  by  liolder  of 

adverse  title  in  possession 97,  98  ef  seq. 

when  may  recover  chattels  severed.    97 

receipting  to  an  officer  cannot  deny  officer's  right 109 

may  be  estopped  to  assert  title 306,  307 

taking  forcible  possession  of  his  own  goods,  replevin  does 

not  lie , 47 


P. 

PARTIES, 

who  may  be 519 

owners  of  separate  interests  cannot  join 520 

joint  tenants  must  join ■. 520 

agent,  when  may  be 520 

of  express  or  railroad  company  135 

trustees,  executors,  etc 521 

parish  or  corporation 522 

assignee  of  goods  in  adverse  possession  of  another 523 

I                father  or  guardian  may  be 525 

servant  not  a  proper  partj'  525 

officer  may  replevy  goods  seized  on  process 279,  525 

levying  on  bulky  goods,  may  be  sued 133,  134 


INDEX.  76  7^ 

PAGE 

PARTIES— Con  tin  tied. 

receiptor  to  officer 525,  526 

attaching  creditor,  when 526 

minor  cannot  be. 526 

plaintiff  must  be  one  who  has  a  right  to  immediate  and  ex- 
clusive possession 105,  106 

defendant  must  be  one  who   has  possession 130.  131 

right  of  at  time  suit  begun  will  control 441,  443' 

each  has  a  right  to  submit  proper  issues 624 

right  to  return  determined  by   riglit  at  the  time  of  judg- 
ment   441,  442 

death  of,  effect  on  suit 373,  682 

sheriff  may  sue  bond 398 

assignee  of  sheriff  may  sue  bond 348,  349,  350 

who  are,  not  one  who  has  given  bond  to  perform  the  judg- 
ment     ..     538 

plaintiff — 

agent  to  foreclose  a  mortgage,  never  liaving  had  pos- 
session, may  not  be 527 

assignee  of  a  '•  claim  "  for  goods  converted  may  not  replevy 

the  goods 531 

nor  assignee  of  a  writing  evidencing  a  conditional 

.sale 214,  524 

assignee  of  goods  in  adverse  possession  may 530 

and  vendor  of  goods  in  adverse  possession  with  con- 
dition tliat  he  shall  recover  them   531 

and  one  to  wliom  the  ke.v  of  a  trunk,  unlawfully  de- 
tained was  delivered 531 

Bailee.     See  Bailor  and  Bailke. 
corporation — 

officer  cannot  replevj-  the  properties  of,  merely  by 

virtue  of  his  office ,530 

consignor  and  consignee 529,  530 

creditor — 

may   not  replevy  goods  mortgaged  by  the  principal 
debtor   to   tlie   surety  for  indemnity  till  he  lias 

foreclosed  the  mortgage  5,33 

endorsee  of  note  secured  by  mortgage 203 

executor  or  administrator — 

may  replevy  goods  pertaining  to  the  estate 527 

even  against  si>eciric  legatee,  or  the  sole  distributee 

though  there  are  no  debts 23,  527 

not  against  guardian  for  insurance  policy  in  which 

tlm  ward  is  l)eneficiary 537,  528 

not  executor  of  bailew ...     521 

huuband   and   wife  ;  neither  can    have  replevin   aguinst  the 

other  at  <-r)tnmon  law 5;{0 

may  join  to  receiver  wife's  Heparat*-  chattel KM) 


T68  INDEX. 

T  ARTIES— Continued.  p^gk 

wife  living  separate  from  her  Imsband  may  replevy 

from  him 72,  530 

wife  wlio  is  a  sole  trader  may  replevy   from  a  stran- 
ger  72,  5;}0 

husband  cannot  replevy  from  the  wife  goods  of  which 

she  is  individually  tlie  depositary 72 

guardian,  may  replevy  the  chattels  of  tlie  ward  580 

infant  nuiy  sue  by  guardian  or  next  friend 530 

by  next  friend   where  the  guardian  has   been   dis- 
charged  23,530 

legatee  may  replevy  specific  legacy  when  estate  has  been 

finally  settled 527 

mortgagor,  entitled  to  possession 528 

mortgagee  in  possession 528 

though,  but  for  such  possession,  the  mortgage  would 

be  fraudulent 528 

cases  contra 528 

partners,  all  must  unite 529 

*  pledgee, — 

;  may  replevy  from  officer  levying  upon  the  pledge. . . .     528 

*  receiptor,  may  replevy  the  goods,  if  his  possession  be  dis- 

=  turbed 528 

in  some  cases  may  replevy  tliough  he  has  the  actual 

»,  possession 528 

receiver,  in  a  state  other  than  that  of  appointment 528 

tenants  in  common,  all  must  unite 529 

one  may  replevy  from  a  trespasser 529 

not  one  from  the  other ! 529 

trustee,  to  whom  goods  are  assigned,  merely  to  enable  him 

to  sue 527,  530 

need  not  sue  as  trustee,  nor  name  the  beneficiary 527 

right  not  impaired  by  death  of  beneficiary 527 

unincorporated  society,  a  committee  of 527 

joinder  of  plaintiffs  ;  husband  and  wife 530 

holder  of  legal  title  with  holder  of  equity 531 

mortgagor  and  mortgagee,  though  the  right  of  possession  is 

in  one  only 531 

mortgagees  in  separate  mortgages 531 

principal  and  surety  in  a  promissory  note  which  having  been 

paid  is  wrongfully  detained 531 

defendants :  the  party  in  actual  possession,  is  the  only  pro- 
per defendant 532 

though  another  claims  to  be  tenant  in  common  with 

him 532 

'  even  thougli  he  is  a  mere  servant,  or  receiptor,  or  an 

auctioneer  holding  the  goods  for  sale 532 

one  who  has  no  control  not  liable,  though  he  holds 

the  keys  of  the  place  where  the  goods  are 533 


INDEX.  769 

PAGE 

TARTIES—Contimied. 

nor  an  agent  wlio  has  lawfully  delivered  the  thing  to 

a  sub-agent 533 

nor  an  officer  who  having  taken  the  goods  under  writ 
of  replevin  has  delivered  them  to  the  plaintiff  in 

thesuit  533 

administrator  of  mortgagor  not  a  necessary  party 

where  lessee  of  mortgagor  sues  the  mortgagee. .     533 

assignee  for  creditors  not  liable  to  assiguor 534 

attorney  acting  in  good  faith,  in  foreclosing  a  mortgage  not 

liable  to  a  stranger  to  the  mortgage 534 

constructive  |)ossession,  party  in  may  be  liable,  e.  g.  theclient 
for  jKipers  in  attorneys  hands  and  bailor  for  goods  in  pos- 
session of  bailee 533 

executor,  whether  liable  for  goods  converted  by  testator 533 

husband  liable  when  in  possession  jointly  with  wife 534 

and  if  the  wife  has  sole  possession  upon  his  premises.  534 
not  when  the  goods  are  the  wife's  separate  propertj'.  534 
wife  in  possession  liable   where  the  husband  has  fled 

'  the  state 534 

wife  entitled  to  be  joined  where  the  husband  sues  for 

her  separate  goods 535 

the  sheriff  holding  goods  under  writ  of  replevin  not  liable  to 

a  second  replevin,  even  by  a  stranger 534 

not  liable  for  acts  of  deputy  foreclosing  a  mortgage.     534 

entitled  to  defend  after  he  has  gone  out  of  office 535 

joinder  of  defendants 

creditor  in  execution   and   officer  cannot  be  joined 

•  though  the  creditor  ordered  the  levy 535 

nor  the  city  witii  tlio  marshal  who  has  impounded 
an  animal  founded  at  large  in  violation  of  ordi- 
nance       532 

one  impounding  cattle  unlawfully,  and  the  land  owner  with 

whom  he  resides,  refusing  to  deliver 535 

part  of  the  goods   detained   by   one,   and   part   by  another, 

joinder  permitted 535 

misjoinder  of  defendants 

effect  of  and  how  cured 535 

new  |>arli«'s,  ainenflments 535-537 

married  woman  suing  the  husband  may  be  joined 535 

wife  may  be  joined  where  her  liusband  sues  for  her  separate 

g(MxlH '*■'•* 

defendants  may  be  added 535 

even  after  Ihi-  suit  is  abated 535 

only  thoHe  can  be  added   who  are  comi)et«nt  parties  origin- 
ally      5«0 

defendant  pleading  title   in   a  stranger,   stranger  may   be 

brouglit  i" '.  139,  53(1 

49 


TYO 


INDEX. 


PAOK 

PARTIES— Co«/inHfd. 

goods  replevied  and  demanded  in  a  second  suit  by  a  stranger 
to  the  first,  defendant  in  the  second  suit  may  bring  in 
the  otlier  party  to  tlie  first  suit 535,  536 

cases  holding  that  strangers  cannot  be  brought  in 536 

intervention  : 

third  parties  claiming  the  goods  may  come  in  wlierever  the 
statute  provides  that  one  not  a  party  but  having  an  in- 
terest may  petition  to  bo  made  j)arty 536 

one  from  whose  possession  the  goods  liave  been  taken  is  en- 
titled to  come  in  independent  of  statute 536 

and  one  who  is  entitled  to  the  goods 536 

where  the  sheriff  is  defendant,   the  creditor  under  whose 

writ  he  has  levied  may  come  in 536 

intervention  not  allowed  in  bail  trover  in  Georgia 536 

nor  can  the  sureties  come  in  and  tender  the  goods 536 

plaintiff  Iiaving  obtained  the  goods  under  liis  writ,  no  order 
will  be  made  for  their  disposition,  until  final  determina- 
tion of  the  action 536 

in  New  Yc»rk  the  court  may  substitute  for  the  sheriff  the 

creditor  under  whose  writ  he  seized  the  goods 536,  537 

substitution  refused  in  Nebraska 537 

I                 in  Iowa  a  statute  providing  for  such  substitution  held  un- 
constitutional       537 

the  real  party  in  interest  may  be  substituted  by  consent. . . .     537 

not  against  the  will  of  the  omitted  party  if  his  rights  were 

known  and  the  omission  was  intentional 537 

upon  death  of  assignee  for  creditors  his  successor  and  not 

his  administrator  should  be  substituted 538 

administrator  should  be  substituted  for  collector  of  the  estate    538 

corporation  not  to  be  substituted  for  its  members  who  bring 

replevin  for  corporate  property 538 

stranger  to  the  suit  not  to  be  substituted  as  plaintiff  though 

he  is  the  real  owner  of  the  goods  538 

several  who  caused  themselves  to  be  substituted  for  the 
sheriff,  who   has  taken   the  goods  upon   writ  in  their 

favor  are  liable  jointlj' 538 

and  cannot  complain  of  the  substitution 538 

death  of  plaintiff  or  transfer  of  his  interest  does  not  impair 

defendant's  right ;  he  may  proceed  against  the  sureties..     538 
PARTNER, 

one  partner  cannot  maintain  replevin  upon  a  mortgage  to 

the  firm 143 

one  partner  cannot  replevy  from  the  other 70,  142,  144 

,  or  where  the  appliances  used  by  the  firm  are  the  sep- 

'  arate  property  of  i)laintiff 143 

otherwise,  if  the  articles  provide  that  on  dissolution, 

one  of  them  shall  liave  the  assets 143 


INDEX.  77  j^ 

PACK 

PARTNER— Co7jhn«ed. 

sale  of  one  partner's  interest 150 

survivor  or  administrator  entitled  to  possession  may  sustain 

replevin   148 

when  resjwnsible  for  taking  by  one  member  134 

one  cannot  bind  firm  on  a  replevin  bond 366,  367 

accounts  cannot  be  settled  in  replevin 150  et  seq. 

interest  of  one  may  be  seized  on  execution 150 

sale   by  one.  not  in   the   ordinary  course  of  business,  and 
against  tlie  wishes  of  the  otiiers,  does  not  impair  the  title 

of  the  partnership 71 

a  majority  may  act,  in  closing  out  the  firm  goods 71 

levy  on  partnership  goods,  for  private  debt  of  one  partner. . .       71 

slieriff  may  take  possession  of  the  whole 71,  72 

must  levy  only  on  the  indebted  partner's  interest 71 

must  not  levy  on,  or  sell,  specific  goods  less  tlian  the  whole..       71 

partnership  not  dissolved  by  such  levy 71 

purchaser  on  execution  against  one,  not  entitled  to  posses- 
sion  71,  143 

declaration  must  give  the  names  of  the  individual  partners.     569 
need  not  show  compliance  with  the  statute  requiring  an  affi- 
davit of  the  names  of  the  partners,  to  be  filed  in  a  public 
office 569 

PAUPER, 

taking  oath  of,  does  not  excuse  giving  bond 351 

PENALTY  IN  BOND, 

mode  of  ascertaining 360 

judgment  for,  how  discliarged 396,  397 

not  the  measure  of  the  parties'  right  of  recovery 396,  397 

PERISHABLE  PROPERTY, 

disposition  of,  pending  suit 427,  428 

rule  concerning  422,  423 

PERSONAL  ACTION, 

how  far  replevin  is  a 36 

PERSONAL  PROPERTY, 

what  is,  tried  in  replevin (H) 

PERSON  OK  DEFENDANT. 

goods  on,  caniKjt  be  taken 137,  271 

PLACE,  LAW  OF, 

the  title  to  goods  acquired   in  another  state  depends  on  the 

law  of  that  state 74 

PLAINT, 

afndavit  of.  modern  practice 54 1 ,  .542 

PLAINTIFF.  See  Pautiks. 

who  may  \m'..  in  n-jdevin 519 

rnu«t  have  tin  entirti  intereHt 144 

owners  of  H«'i»ariitn  inleroHlH  cannot  join 145 

entitled  to  \><)HHHHHiou  pending  Huit 88,  423 


772  INDEX. 

PAOC 

PLAINTIFF— Conftnued. 

duty  of,  concerning  the  property  pending  suit 427,  428 

must  show  riglit  to  present  and  exchi.sive  possession.  105, 107,  111,  112 

ownershij)  in  the  identical  goods  sued  for 132 

duty  of  as  to  keei)ing  the  ])ioperty  until  suit  is  decided. .  .427,  428 

rights  of,  to  property  pending  suit 422,  424,  425 

when  may  .sell  property  pending  suit 421,  422,  423 

rights  acquired  by,  under  the  writ. ...    421 

injuries  to  goods  pending  suit  at  his  risk 422,  423 

need  not  siiow  title  by  absolute  ownersiiip 106  et  seq. 

"  property  in,"  meaning  of  the  term 106 

need  not  show  title  against  the  world 107  ct  seq. 

asserting  title  must  show  good  title 117 

a  right  to  possession  as  against  defendant  117  ef  seq. 

not  required  to  return  unfess  he  had  delivery 443,  444 

not  liable  to  return  unless  so  ordered  by  the  court 434,  435 

may  return  property  without  order  and  save  damages 434,  435 

damages  allowed  to 456 

must  give  security 17,  18,  360 

PLEADINGS. 

established  rules  must  govern . .  .539,  540 

statutory  rides 604 

declaration  must  state  value  of  property 558 

issues  formally  admitted  cannot  be  denied 604 

description  of  property  should  follow  affidavit 548,  551 

declaration  may  contain  several  counts 551 

count  in  trover,  when  permitted 551 

averment  of  demand,  when  necessary 559 

delaration  for  "  a  framed  building"  sufficient ;  the  question 

whetiier  it  is  realty  or  personalty  to  be  settled  by  evidence.       92 
contra,  the  facts  which  constitute  it  personalty  must 

be  alleged 92 

need  not  aver  that  the  goods  are  exempt ' 569 

contra 256 

or  not  taken  under  process  against  plaintiflF ;  or  not 
taken  for  a  tax  assessment  or  fine  ;  nor  anticipate 

the  defence 569,  570 

partners  suing  need  not  aver  compliance  with  statute 
requiring  an  affidavit  showing  partnership  names 

to  be  filed  in  a  public  office 569 

must  give  names  of  the  co-partners 569 

mai'ried  woman  need  not  aver  her  coverture  ;  but, 
averring  it,  she  must  also  show  the  facts  entitling 

her  to  sue 569,  570 

infants  need  not  aver  leave  to  sue  by  next  friend  ; 
nor  conservator,  a  judicial  declaration  of  the 
insanity  of  his  ward,  unless  he  would  disaffirm 
a  gift  by  the  ward 569 


INDEX.  773 

PAGE 

PLEADINGS— Con^nnud. 

for  a  promissory  note,  payable  to  a  third  person,  need  not 
aver  an  assi<;nment ;  nor  give  date,  place  of  payment,  or 

rate  of  interest 569 

executor  must  aver  the  issuing  of  letters  testamentary 570 

how  title  must  be  averred 570,  571 

declaration  must  aver  riglit  to  possession  at  the  institution  of 

the  suit 573 

and  wrongful  detention 572 

need  not  aver  demand  and  refusal 573 

nor  tlie  separate  value  of  each  article 573 

the  ad  damiiuin  need  not  include  the  value 573 

must  aver  any  special  damages  demanded,  e.  g. 

for  injury  to  the  goods 573 

need  not  correspond  with  the  affidavit 573 

prayer,  defects  in  disregarded 573 

verification,  not  jurisdictional 573 

special  damages  must  be  specially  pleaded 483 

disclaimer  of  interest  in  property  no  defense 608 

by  sheriflf 563 

whether  non  detinet  is  proper  to  charge  of  taking 607 

joinder  of  pleas  allowed 606 

several  pleas  allowed,  Stat.  Anne 606 

matters  in  issue  not  admitted  by  subsequent  pleadings 604 

proof  of  one  of  several  defenses  sufficient 561 

traverse  denies  plaintiff's  right    567 

traverse  the  material  part  of  the  plea 563,  564 

without  traverse,  burden  of  proof  on  defendant 568 

to  affidavit 543 

affidavit  not  a  part  of  the  record 540 

avowry  and  cognizance  substance  of  these  pleas 616,  617 

statutory  forms  sufficient.    558 

justification  alone  burdf  n  of  proof 608 

statutory  effect  given  to  voii  detinet 608,  609 

cepit  ill  alio  loco 607 

non  cepit,  or  non  detinet 603,  604 

effect  of  non  cepit  605.  606 

non  detinet,  rules  govj-rning 608,  609 

plea.s  in  abatement,  of  joint  tenancy 149 

prior  replevin,  necessary  allegations  in 679 

plejiH,  joinder  of 561 

wjparate,  need  not  be  consistent  witli  each  otiier 561 

to  merits,  waiver  of  oljjection  to  bond 368 

dos«Tipti<»n ....  163 

of  pro[»erty  in  dt'fcndaiit,  liow  construed 562 

not  KuUhMHiit  anaiuHt  right  of  i)oi«e«sion    503 

ntM't'hs.iry  to  ol)tain  rt?turn 438 

wliat  will  Miistain  this  plea •'>63 


774  INDEX. 

PAGE 

PLEADINGS— Con^n?ted, 

must  traverse  plaintiflf's  riglit 562 

to  obtain  order  of  return 438 

of  non  cepit,  simply  denies  taking :    563,  564 

admits  the  property  in  tlie  defendant 562 

return  not  ordered  upon 436,  437 

damages  not  allowed  to  defendant  on 457 

exceptions  to  this  rule 457 

non  detinet,  return  not  ordered  on 436,  437 

of  title,  must  show  where  suit  began 561 

of  justification  by  an  officer 279,  280 

must  show  process 562 

of  property  in  third  person 563,  564 

does  not  admit  the  taking 564 

third  person  must  be  named 564 

not  sufficient,  where  plaintiff  claims  only  right  of 

possession 566 

not  binding  on  said  third  person  unless  a  party 564 

form  of  this  plea 564 

right  of  defendant  to  return  under 565 

defendant  must  connect  himself  with  that  third  person     567 

what  sufticient  to  sustain  this  plea 438,  439 

burden  of  proof 564 

when  defendant  may  have  return  on 438,  439 

trespasser  cannot  have  return  under 438,  439,  566 

defendant  cannot  show  property  in  another 564 

what  sufficient  to  authorize  return  under 566 

without  traverse,  burden  of  proof  on  defendant 564 

evidence  to  sustain  must   be   sufficient  to  destroy 

plaintiff's  interest 566 

with  traverse 563,  564 

proper  replication  to 564 

to  avowry,  or  cognizance,  like  plea  to  declaration 608,  609 

what  it  must  show 620 

to  suit  on  bond,  that  defendant  converted    the   property, 

is  bad 392,  393 

PLEA  OR  ANSWER, 

must  respond  only  to  so  mucli  as  it  assumes  to  answer 573 

upon  information  and  belief 573,  574 

need  not  aver  continued  right  in  defendant  down  to  filing. .     574 

what  pleas  admissible 574 

effect  of  non  ceptit.  non  detinet.  or  not  guilty 574 

general  denial,  what  defenses  admitted  under 574,  575 

what  must  be  specially  pleaded 577 

answer  must  demand  return  of  the  goods 578 

cases  contra 657,  658 

joinder  of  defenses,  several  pleas 578 

replication 578 


LNDEX.  775 

PLEA,  OR  A'SSWER— Continued.  '"''*"' 

change  of  issue  by  agreement 578 

construction  of  pleadings 579 

set-off,  inadnnssible 581 

cases  contra 582-584 

amendments,  to  be  allowed  on  seasonable  application;  or 
upon  trial  if  no  surprise  occasioTied  ;  so  as  to  demand  the 
value  of  the  goods  ;  or  as  to  the  amount  of  the  goods  ;  or 
to  increase  the  damages ;   or  to  insert  specific  articles 

not  named,  even  before  referee 584 

misnomer  amended 584 

amendment  allowed  so  as  to  charge  fraud 584 

even  upon  appeal 584 

not  so  as  to  strike  out  from  complaint  part  of  the 
goods,  wliere  these  have  been  replevied,  and  the 

answer  demands  damages  therefor 584 

certain  amendments  not  allowed 584,  585 

reasonal)le  conditions  may  be  imposed 585,  586 

amended  i>etition  relates  to  commencement  of  action 585 

the  goods  need  not  be  surrendered,  as  a  condition  precedent    585 
where  the  goods  are  not  found  ;  or  are  returned  to  defendant 
for  want  of  bond,  the  statute  allowing  the  cause  to  pro- 
ceed as  one  for  damages,  no  amendment  of  the  declara- 
tion required  586 

may  be  amended  so  as  to  demand  return  of  the  goods 585 

even  after  reversal  of  judgment  on  appeal  after  trial  before 

referee,  and  judgment  ordered 585 

so  as  to  aver  want  of  consideration  in  mortgage  upon  which 

plaintiff  relies  ;  so  as  to  allege  value  of  the  goods 585 

or  correct  a  mis-statement  of  the  amount  of  a  lien  claimed. .     585 
so  as  to  aver  tiiat  the  goods  were  taken  by  plaintiff  after 

the  institution  of  the  suit 585,  586 

after  verdict  allowing  defendant  as  the  value  a  sum  in  excess 
of  what  he  claimed  in  his  answer,  he  is  not  allowed  to 
ameml,  increasing  the  valuation  witliout  granting  plain- 
tiff a  new  trial 586 

answer  of  intervener  amended 586 

reply  amended 586 

supplemental  pleading,  demanding  the  increa.se  of  live  stock 

born  jMjnding  an  action  for  the  dams 586 

aider  by  phiuduig  over 586 

by  verdict 586 

PLEDGP;S, 

meaning  of lir* 

PLEDUEK, 

not  entitled  tn  value  of  une  aH  damagea 493 

of  HUtUm  goodH,  wh«n  liable  for 8.'W,  .HHI 

of  ({(xkIh  obtained  by  fraud,  replevm  Iii«h  against 811,  313 


776  INDEX. 

PAQK 

FhEBGEE— Continued. 

may  maintaiii  replevin  where  pledgor  wrongfully  repossesses 

himself  of  tlie  goods 70 

not  without  possession Tq 

not  wliere  goods  are  left  with  pledgor  till  his  death.       70 
not  against  tlie  true  owner,  where  pledgor  had  no 

title 70 

PLEDGOR, 

may  have  replevin,  after  payment  of  the  debt 70 

or  where  there   was  no  lawful  ciebt,  e.  g.  a  debt  void 

by  statute  for  usuiy 70 

or  where  tlie  pledgee  has  converted  the  pledge 70 

by  delivery  of  a   warehouse  receipt,  cannot,  inde- 
pendent of  statute,  substitute  other  goods 70 

PLURIES, 

returnable,  and  the  reason 8 

PONE, 

writ  of 13 

POOR  PERSON, 

replevin  cannot  be   prosecuted  by  plaintiff,  as,  in  the  first 

instance 686 

upon  motion  for  security  for  costs,  may  take  the  pauper's 

oath 686 

POSSESSION, 

plaintiff  must  show  a  right  to 23,  105.  106 

right  of,  in  replevin,  always  in  issue 109 

riglit  of,  suflicient  to  entitle  the  party  to  recover Ill,  114,  563 

temporary  right  to,  will  sustain  replevin 117 

to  sustain  replevin,  must  be  rightful 557 

prior  rightful,  sufficient  title  against  all  but  the  owner  .113  et  seq. 

must  be  under  <a  claim  of  right 114 

need  not  be  under  a  claim  of  title 114 

by  finder  of  goods 115 

right  to,  does  not  depend  on  former 150,  151 

right  of,  may  alone  be  put  in  issue 554 

obtained  by  force  or  fraud  confers  no  right 290 

prior  rightful,  prima  facie  title   \\2  et  seq. 

chief  question  at  issue  in  replevin 39.  40 

owner  usually  entitled  to 117,  118 

ownership  riglit  to,  may  be  in  different  persons 107 

prior  rigiitful 114 

when  sufficient  to  sustain  replevin '.  ..1\2  et  seq. 

by  an  officer,  is  not  possession  by  the  creditor  in  the  process  134, 135 

after  dismissal 137 

neglect  to  deliver,  when  not  a  conversion 133 

^  by  defendant,  parting  with  to  avoid  writ 131,  133 

taken  as  an  act  of  charity,  no  conversion 331 

does  not  authorize  a  sale 291,  292^ 


INDEX.  777 

PAGK 

POSSESSION— Co«f  J  UHerf. 

if  rightful,  in  defendant,  demand  necessary  ;  if  wrongful, 

not  necessary 313,  314  et  seq. 

actual,  by  defendant,  necessary  to  sustain  replevin 132,  133 

what  facts  constitute 57,  66,  67,  80 

husband  and  wife  residing  together,  his   possession  of  her 

chattels  is  the  wife's  possession 72,  8 

mere  custody  of  keys  of  shop,  not  possession  by  one  claiming 

no  right  or  control 8 

tenant  of  rented  apartments  in  possession  of  the  fuiniture 

therein 8 

the  occupant  of  a  house  by  him  wrongfully  attached  to  an- 
other's land,  not  in  possession 8 

son  residing  with  parent,  using  her  animals  in  her  business, 

is  not 8 

husband  liable  if  wife  wrongfully  retains  the  goods  of  another 

on  his  premises 8 

^  mortgagee  who  has  tagged  the  goods,  is  in  possession,  and 

may  replevy 82 

sawyer,  permitting  the  owner  to  pile  the  lumber  upon  the 

mill  lot,  does  not  lose  the  possession 123 

constructive  possession 83,  84 

officer  under    levy  ;  husband,  of    goods  wrongfully 

detained  by  wife 84 

of  defendant  in  replevin,  where  the  action  has  been 
discontinued,  though  manual  return  has  not  been 

made 84 

defendant  must  be  party  wlio  has,  wlien  suit  brought 130,  131 

exception 131,  132 

contract  to  purchase  does  not  confer  right  to 126 

of  properly,  pending  suit 38 

under  writ  of  replevin,  does  not  confer  title 424,  425 

when  defendant  allowed  to  retain 40 

conflicting  claims  to 114 

PRACTICE, 

Huriimons,  and  return 683 

pleading  to  tlie  merits,  or  appearance  a  waiver 684 

the  officer  nmst  make  diligent  effort  to  find,  and  take  the 

goods    083 

in  all  j)nx'eedings,  the  statute  must  be  strictly  complied  with  684 
Heparate  causeH  between  tlie  same  parties,  and  depending  on 

the  same  evidence,  may  bo  consolidated 684 

the  court  controls  the  ofli<'erK 684 

and  protects  the  rights  of  all  parties 668,  671,  684 

PRESUMITIONS, 

in  favor  of  an  oflicer 27ft 

:                   an  to  quality  of  goodit  converted 473 


778  INDEX. 

PAOB 

PRINCIPAL  AND  AGENT, 

agent,  with  principal's  money,  buys  in  his  own  name  ;  pur- 
chaser from  him,  in  good  faith,  takes  title 73 

creditor  liable  for  the  acts  of  attorney,  though  under  a  sta- 
tute, afterwards  declared  unconstitutional 331 

PROCERSS.    See  Exempt  Goods,  Levy,  Justification. 

goods  ttikeu  under,  not  repleviable  by  defendant  in  the  writ  239,  240 

in  Mississippi,  not  even  by  a  stranger 239 

otherwise,  generally 239,  240 

levy  of,  what  acts  necessary 127 

officer  appointed  guardian  of  plaintiff,  cannot  proceed 128 

PROFITS, 

real  or  probable,  when  may  be  allowed  as  damages 484,  485 

how  far  expected,  enter  into  damages 484,  485 

expected,  of  illegal  business  not  allowed  as  damages 484,  485 

PROPERTY  IN  PLAINTIFF, 

declaration  must  allege 554 

meaning  of  the  term  in  this  action 106 

must  be  in  existence,  subject  to  manual  delivery 132 

destroyed  before  suit,  action  does  not  lie 134 

sold  to  defraud  creditor,  purchaser  cannot  recover 306 

injuries  to  while  in  plaintiff's  possession 422,  423 

sale  of,  pending  suit  in  replevin 421 

taken  on  writ,  is  in  custody  of  the  law 422 

right  of  plaintiff  to,  pending  suit 423  et  seq 

acquired  by  the  plaintiff  by  the  writ 421 

right  of  determined  in  the  replevin  suit  cannot  be  ques- 
tioned in  suit  on  bond 392 

plea  of,  necessary  to  return 438 

PROSECUTION  WITH  EFFECT, 

what  is 372 

PURCHASE, 

contract  for  does  not  give  right  of  possession  126 

of  interest  of  one  joint  tenant 150  et  seq. 

of  property  in  adverse  possession  of  another 523 

by  insolvent,  on  credit,  believing  himself  solvent 307 

at  sheriffs  sale,  if  sale  wrongful,  no  title  passes 129 

of  chattels  at  tax  sale,  must  show  title  through  valid  judg- 
ment      231 

PURCHASER, 

from  agent  must  know  extent  of  his  authority 291,  292 

R. 

RAILROADS. 

Rails  affixed,  part  of  the  land 28 

not  so  as  to  street  railways 29 

RAILROAD  AGENT, 

demand  upon  sufficient 343,  344 


INDEX.  779 

PAGE 

REAL  ESTATE.    See  Fixtures. 

replevin  does  not  lie  for 50 

title  to  cannot  be  tried  in  replevin 96,  97 

title  to,  when  evidence  in  replevin 96,  97 

wliat  is  may  be  investigated  90,  91,  275  et  seq. 

writ  does  not  authorize  a  severance  of  chattels  from 275 

mortgagee  of.  when  he  may  recover  chattels  severed. .  101  et  seq. 

chattels  taken  and  annexed  to 182 

property  severed  from,  replevin  lies 95,  96 

propertj-  severed  from,  value  as  chattel  only  recovery 506 

RECAPTION  OF  THE  GOODS, 

the   offending  party  should  be  punished  for  his  contempt,  and 
required  to  restore  them 431,  432 

RECEIVER  OF  COURT, 

goods  lawfully  in  custody  of,  not  repleviable. 236 

appointment  of,  does  not  displace  existing  liens 239 

nor  stay  execution  already  a  lien 239 

appointed  in  one  state  may  replevy  in  another  chattels  which 
he  removes  to  the  latter  by  order  of  the  court  of  appoint- 
ment      528 

of  national  bank,  does  not  exclude  the  jurisdiction  of  state 

courts,  by  asserting  claim  to  effects  not  of  the  bank 238 

RECEIPTOR  TO  OFFICER, 

rights  of 128 

cannot  plead  property  in  himself 76 

cannot  be  dispossessed  under  junior  process 237 

RECOUPMENT, 

plea  of,  to  an  avowry  or  cognizance 619 

cannot  be  had  in  replevin 517 

RECORD, 

of  judgment  in  replevin,  not  evidence  of  title 109 

of  replevin  suit,  how  far  material  to  suit  on  bond 389,  390 

RECORDARI, 

writ  of 13 

REFUSAL  TO  DELIVER. 

rea'ion  for  must  be  stated 344-346 

proof  of  raises  presumption  of  conversion.  . .   327,  338,  3;}4,  338-340 

how  interpreted 323,  325,  326 

by  servant,  when  i)roi)or 345,  840 

to  agent,  when  justified .'544 

what  Hufliri«'nt  excuse  for 345,  846 

•  jualified,  when  pro|)er 344 

f)fTfr  to  deli vj-r  at  another  place 346 

RELEASF-:  OF  SFICUKITIKS. 

by  il»'!iv«Ty  of  tlm  goods  to  anitthttr  on  oidcr  nf  (Im  r-(»urt.  . .  .     30H 
a  releaiw  of  the  sherifT.    .  .  .   349,  8.'H) 


^780  INDEX. 

PAOB 

REMITTITUR, 

cures  an  excessive  award  of  damages 460 

not  where  tlie  jurisdiction  is  exceeded 267 

REMOVAL  OF  PROPERTY, 

after  writ  issued,  effect  of 421 

RENT, 

how  payable 616,  617 

was  the  property  of  the  landlord 610,  611 

payable  in  anything  which  was  certain 616,  617 

distress  for  non-payment  of 612 

REPLICATION, 

to  plea  of  property  in  third,  person 564 

to  plea  of  property  in  a  stranger 568 

REPLEVIN, 

origin  of,  unknown 1 

a  mixed  action 36 

by  writ  before  the  statute  of  Marlbridge 3 

defined  in  the  Mirror 1 

by  Britton 1 

by  Blackstone 4 

ascribed  to  Glanvil 1 

first  appearance  of  among  lex  scripta 3 

^  in  infinitum,  statute  against 15,  17,  18 

for  the  recovery  of  distresses 3 

allied  to  the  law  of  distress 2 

ancient  writ  of,  authorized  the  slieriff  to  act  as  judge. ...  6,  10,  11 

writ  of,  issued  only  at  Westminster , 9 

a  writ  of  right 36 

ancient  writ  of,  not  returnable 6 

writ  alias  and  pluries  issued  at  one  time 8 

sheriff's  duty  in  case  of  resistance 10 

by  plaint 9 

defects  remedied  by  Statute  of  Marlbridge 3 

growtli  of  the  law  of 415 

existed  before  chancery  was  known 1 

damages  anciently 13 

ancient  mode  of  trial 11 

ancient  writ  of,  did  not  lie  to  try  title 7 

no  delivery  where  defendant  claimed  title 7 

ancient  writ  of,  did  not  contain  summons  to  the  defendant.        6 
under  modern  practice — 

definition 21.  22 

primary  and  secondary  object  of 24-36 

importance  of  tiie  action. . .    38,  39 

peculiarities  of  the  action 38 

a  favorite  of  the  law 12 

^  called  a  violent  remedy 38,  39 

when  the  only  available  remedy 38,  39 


INDEX.  781 

PAOB 

REPLEVIN— Com  t  in  ued. 

•A  proceeding  partly  in  rem 36 

forms  of  in  different  States 37,  38,  52 

nature  and  purposes  of  the  action 50,  51 

indifferent  states 53 

statutory  prohibitions,  and  interferences  with 54 

for  what  it  lies — 

only  for  chattels 87,  89 

what  are  chattels 87 

for  domestic  animals 88,  89 

for  title  deeds  to  land  23 

not  wliere  the  question  is  whether  the  deed  was  de- 
livered         23 

promissorj-  note  of  third  person 23 

for  promissory  note  obtained  b}'  fraud 23 

or,  wherever  equity  would  decree  cancellation 23,  24 

drafts,  checks,  bonds,  coin  and  bank  bills 24,  25 

Toucher,  verified  claim  against  decedent's  estate. ...       24 
license   to  .sell  liquors,  land-scrip,  newspaper,  pass- 
book, corporate  .stock,  insurance  policy 24,  25 

a  locomotive,  wild  animals  domesticated 25 

the  aliquot  part  of  goods  of  the  sjime  nature  and 
quality  mingled  in  one  mass  by  consent  of  the 

owners 25,  26.  62,  143,  173 

e.  g.  timbers,  wheat  in  straw,  railwa)'  ties 143,  147 

cases  contra 143,  144,  147 

for  tenant's  fixtures 148 

intoxicating  liquors  found  in  po.ssession  of  an  unli- 
censed person  and  directed  by  statute  to  be  sum- 
marily destroyed 243 

buildings  or  fixtures  .severed 26,  27,  30-32,  75,  76 

organ  unlawfully  set  up  in  church 26 

a  house  or  machinery  unlawfully  erected  on  another's 

land 27,30 

house  erected  on  another's  land,  by  hiscon.sent 27 

hou.se  erected  by  vendee  of  larul,  in  possession  under 

contract 29,  30 

mantel  attuclied  to  realty  by  conditional  purchaser, 

wlio  maken  default 80 

mju^hinory  erected  temporarily 29 

win<low  H<rroenR,  Hcreen  doors,  gaa-fixtures. 29 

materials  collected  for  building 29 

ferry-lKi.it  attaclierl  by  a  chain 29 

trees.  oarH.  nand,  etc 32,  34 

growing  crops 34,  M."),  75 

fence  hx-ated  on  the  land  of  another  by  miHtaka  of 

tlie   boundary 33 

when  for  buildiiigN HI),  U'3 


782  INDEX. 

PAGE 

REPLEVIN— CoHfi»«ed. 

bonds  which  can  be  identified 88,  89 

money  in  a  bag  or  box 88,  8'J 

records  of  a  parisli  or  corporation 88,  89 

wool  sliorn  from  animals 88,  89 

young  of  animals  born  after  suit 88,  89 

after  change  of  form,  if  goods  can  be  identified 176 

in  case  of  willful  confusion 170 

where  form  is  changed  b}'  consent. ...    182 

for  what  it  does  not  lie — 

an  api)rentice  who  is  a  freeman 88,  89 

clothing  worn  on  the  person 88,  89 

commission  to  office  88,  89 

real  estate 87,  89,  96,  97 

trade  fixtures 92 

money,  unless  in  box  or  bag 88,  89 

goods  in  custody  of  the  law 234 

by  defendant  in  execution 240 

liquors  seized  to  prevent  sale 241,  242 

for  an  undivided  interest 25,  26,  35,  144.  145 

not  for  an  indeterminate  quantity 60,  65 

nor  for  deed  of  lands,  where  delivery  is  denied 23 

nor  for  property  pertaining  to  a  public  office  where 

the  title  to  the  office  in  question 26 

nor  body  of  deceased  person 26 

nor  for  thing  irremovable,  without  destruction  ;  nor 

a  dwelling  actually  occupied  ;  nor  the  materials 

of  a  house,  torn  down  for  re-construction 28 

nor  for  hay  grown  on  land  in  adverse  possession 29 

nor  for  tenant's  share  of  the  crop,  landlord  refusing 

to  divide 147 

cases  contra 25,  26,  62,  143,  147 

when  it  lies 23,  42,  88,  89,  334,  335 

does  not  lie  to  try  title  to  land 28,  34 

nor  title  to  a  public  office 26 

nor  to  settle  partnership  accounts  ;  nor  the  accounts 

of  an  assignee  in  insolvency 51 

nor  against  sheriff  who  holds  the  goods  under  a  writ 

of  replevin,  even  by  a  stranger  to  that  writ 235 

cases  con  tra 235 

even  though  the  goods  taken  under  the  first  writ  are 

not  named  in  that  writ 235 

nor  against  plaintiff  in  replevin,  pending  the  action.     236 
nor  against  defendant  holding  the  goods  under  forth- 

r  coming  bond 236 

scope  of  the  investigation 49.  50 

conflicting  titles  may  be  settled  in 39,  40 

for  specific  chattels  and  damages 21,  22,  38,  39 


INDEX.  733 

PAGE 

REPLEVIN— Co7i  f/H  i/ed. 

right  to  present  possession  the  cliief  question 39,  40 

distinguished  from  trespass  and  trover 44,  45 

in  cepit,  iletiiiet  and  detiiiuet 48 

trespass  and  trover  concurrent  with 42-44 

for  cattle  illegally  impounded 243 

lies  only  for  chattels 87 

formerly  would  lie  onl}-  for  distress 40,  41 

prior  rightful  j>ossession,  when  sufficient  to  sustain... .   112  et  seq. 

what  is  wrongful  taking 49 

lies  only  for  goods  cajjable  of  delivery 153,  154 

"  title  "or  "  projierty  "  to  sustain 106 

detention  necessary-  to  sustain 48 

possession  in  defendant  necessary 47,  130,  131 

when,  after  defendant  has  parted  with  goods  to  avoid  the 

writ , 131.  132,  136,  137 

plaintiff  must  show  a  right  to  immediate  and  exclusive  pos- 
session    105,106 

plaintiff  must  .show  that  he  is  the  owner  of  the  identical 

goods  sued  for 152,  153 

for  a  distress  wrongfully  taken 611-613 

for  intoxicating  liquors  seized  under  a  void  ordinance 242 

for  powder  seized  under  an  ordinance 243 

against  a  receiver  for  goods  wrongfully  held  by  him 238 

for  goods  wrongfully  sold  on  execution 129 

when  bailee  pledges  goods  without  right 290 

wrongful  taker  cannot  question  title  of  one  in  possession. ...     117 
for  goods   wrongfully  .seized  by  officer...  236,  237,  241,  242, 

264,  265,  336 
for  goods  seized  for  tax — 

bare  assertion  of  defendant  that  he  holds  property  on 

a  tax  warrant  not  sufficient 225 

when  no  tax  can  legally  be  levied 219-221 

where  the  warrant  on  its  face  shows  no  autliority 

225,  226  et  seq. 

permitted  when  ])laintifT  does  not  ask  delivery 224 

after  the  levy  has  been  properly  set  asi<le 226* 

when  tiie  officer  goes  outside  liis  bailiwick 227  ct  iteq. 

lies  from  a  i)ur('lia.s(r  at  tax  Mile   'J;{1 

lies  for  goods  seizeii   under  pretense  of  tax  warrant 

where  no  tax  can  legally  be  levied 226 

lies  again.st  purchaser  at  tax  sale 225 

for  goijds  seized  for  tax  due  from  another.  J.'.' 

lieK  against  purcha.se  ot  goods  sold  for  line 'S.W 

lies  against  a  purchaHC  at  HherifTM  Hale 217 

in  cases  of  fraud  or  tresiMuw —  * 

for  stolen  g(XKls 2HH.  327 

do«fi  not  dei>oi>d  on  conviction  <;f  tin-  thief 289 


784:  INDEX. 

BEPLEYIN— Continued. 

fraudulent  purchaser 207,  299-303,  335,  336 

attiuhiiiK  creditor  of  fraudulent  purchaser 305 

for  goods  taken  by  a  trespasser 2yO,  323,  325,  336 

when  goods  are  fraudulently  obtained  and   transferred  to  a 

trustee  for  the  benefit  of  creditors 137 

against  innocent  purchaser  from  bailee  who  sells  without 

authority 290-292  et  seq. 

against  "  assignee  "  of  fraudulent  purchaser.. . 305 

for  goods  fraudulently  purchased — 

and  transferred  to  pay  debt 312 

return  of  consideration 307,  308 

diligence  required 307,  308 

for  corn  converted  into  whisky 180 

for  goods  which  have  undergone  a  change  of  form 176  et  seq. 

for  goods  sold  to  an  infant  wiien  lie  avoids  payment 306 

against  innkeeper  for  stolen  horse  left  with 296,  337 

for  estrays,  not  posted 332 

goods  sold  b}'  servant  without  authority 291,  292 

for  goods  paid  for  in  counterfeit  money  or  in  a  worthlessnote.  305 
against  carrier  for  goods  wrongfully  taken  and  delivered  to  296 
when  an  agent  sells  goods  in  payment  of  his  own  debt. . .  294,  296 

for  goods  obtained  by  duress 306,  336 

b}'  owner  of  goods  lost  at  sea  and  sold  by  salvors 126 

by  officer — 

officer  holding  on  process  may  sustain 126,  127,  279 

no  lien  unless  actual  levy 126,  127 

levy  on  bulky  articles 134,  135 

by  vendor  against  creditor  of  insolvent  vendee 307 

goods  taken  from  servant  or  carrier 126 

what  is  necessary  to  sustain — 

a  possessory  action 563 

goods  restored  before  suit,  plaintiff  cannot  succeed. .     552 

detention  the  gist  of  the  action 552 

for  goods  transferred  by  transfer  of  bill  of  lading 167 

lies  after  cliange  of   form,  but  should    be  brought  before 

goods  are  greatly  enhanced 179,  180 

by  consignor  when  consignee  refuses  to  pay  draft 167 

borrower  cannot  set  up  title 109 

proof  of  forcible  taking  not  necessary 105,  106 

suit  dismissed  defendant  may  show  he  owned  the  property..     381 

by  taker  up  of  estray 557 

by  surviving  partner,  when  permitted 526 

plaintiff  must  show  a  right  to  immediate  possession.   106,  111,  112 

for  wrongful  use  of  hired  property 434 

wlien  agent  sells  goods  of  principal  without  authority.. .     293-296 

by  an  agent,  when 128 

servant  not  a  proper  defendant ...    135 


INDEX  785 

PAGE 

REPLEVIN— Co»  fmued. 

by  an  auctioneer,  when 128 

bailee  may  sustain,  against  the  owner 107,  117,  118 

servant  cannot  sustain 114,  525 

lies  for  goods  sold  when  vendor  bought  on  condition 312,  313 

lies  for  goods  purchased  only  where  they  are  separated  or 

distinguished  from  others 164  ct  seq. 

lies  for  bonds  which  can  be  identified 160,  161 

Ilea  for  goods  sold  by  marks  or  brands  167,  168 

description  in  writ — 

writ  particularly  describes  the  goods 150,  151 

variance  between  writ  and  narr 162,  163 

when  it  may  refer  to  kind  or  quantity 162 

omission  of  words  in  description 162,  163 

strictness  of  the  rule  as  to 154  et  seq. 

store  and  contents,  when  suflScient 161 

writ  of  return 163 

goods  mixed  with  those  of  another 170  et  seq. 

selection  by  purchaser,  when  sufficient.. . .   165,  166  et  seq. 

general,  when  sufficient ...     161 

when  that  of  different  owners  is  mixed 173  et  seq. 

plaintiff  asserts  continuing  ownership 455,  456 

in  State  court  from  U.  S.  Marshall 258  et  seq. 

from  sheriff,   of  goods  taken   on  execution,  when 

suit  ended,  sheriff  may  retake  and  sell.  279,  425  et  seq. 
from  an  officer,  of  goods  seized  on  execution,  seizure 
on  second  execution  is  a  revival  of  the  lien  on 

the  first 425  et  seq. 

does  not  lie — 

against  innocent  holder  who  changes  form  of  goods 

so  as  to  destroy  identity 178,  179 

against   innot!6nt   purchaser    from    fraudulent   pur- 

cliaser 309  et  seq. 

for    grain,    after    mixture    with    similar    grain    of 

others 173  et  .fcq. 

for  gwxls  seized  for  a  tax 219-221 

cross,  not  allowed 236,  237  et  seq. 

for  an  undivided  interest 144,  145 

against  a  receiver  of  court 238 

for  goods  taken  on  execution  ;  ({ualilic^itions  of  the 
rule ;  execution  must  be  valid,   and  i.s8sued    by 

court  of  competent  jurisdiction 241 

after  change  of  f(jrm  destroying  identity 177 

for  gmwis,  after  mixtun-of  tlmse  of  other  owners,  170  «•/  seq. 

for  gooils  in  the  custody  of  law 234,  241.  242,  243 

for  giMjds  Ixjught  by  inHolvetit,  believing  himstdf  to 

Ik>  solvent 307 

for  cult  exi>ected  to  bo  foaled,  nor  for  a  slave  dead.  153,  154 

SO 


7SQ  INDEX. 

PAGE. 

REPLEVIN— ConfjH  iied. 

for  property  not  in  esse 88,  89,  132,  153,  154 

for  property  destroyed  before  suit  brought. .   182,  153,  154 

wlien  plaintiff  consented  to  sale 138 

for  goods  taken  with  owner's  consent 134 

to  settle  piutiiersliij)  accounts 150 

for  goods  i)urchased,  unless  they  are  separated,  or 

can  be  distiiiguislied 164,  166 

by  divorced  husband  against  wife,  for  goods  in  her 

house 133 

after  dismissal  of  suit  against  same  defendant,  un- 
less the  goods  have  come  to  his  possession 137 

for  an  undivided  interest 144,  145 

by  landlord,  for  share  of  the  crop 146  et  seq. 

for  goods  sold  on  condition 312,  313 

upon  a  contract  of  purcliase 126 

against  innocent  purchaser,  wlien 335,  336 

against   innocent   purchaser    from   fraudulent  pur- 
chaser      297,  309 

for  property  seized  for  non-payment  of  tax. .  217,  218,  219 

for  goods  seized  for  fine 230,  231 

for  clothing  or  ornaments  worn  on  the  person 190 

at  suit  of  defendant  in  execution 296 

nor  by  a  grantee  of  such  defendant  after  suit.     297 

reason  for  tiie  rule 240 

for  liquors  seized  under,  to  permit  sale 241,  242 

against  one  for  taking  his  own  property  47,  237,  238 

for  clothing  worn  on  the  person 88,  89 

for  papers  in  public  offices 88,  89 

for  a  commission 88,  89 

for  goods  sold  to  enable  purchaser  to  violate  law 306 

for  taking,  unless  there  is  a  detention  or  conver- 
sion   329,  330 

for  non-payment  for  goods  sold  on  credit 312 

upon  proof  that  the  defendants  were  about  to  take 

possession 132,  133 

after  sale  in  good  faith  or  destruction  of  property.  131,  132 

for  building  tixed  to  land 95.  96 

of  property  severed  from  real  estate bOQ 

crops  harvested  after  ejectment 99  et  seq. 

by  mortgagee  of  land,  when  he  may  recover  chattels 

severed 101  et  seq. 

for  chattels  fixed  to  land  of  another 96 

for  chattels   severed  from  real  estate  by  a  trespas- 
ser   97,  99  ef  seq. 

for  chattels  severed  from  real  estate  by  one  liolding 

color  of  title 97 


INDEX.  787 

PAGE 

REPLEVIN— Conftnued. 

for  chattels  severed  from  real  estate  by  one  in  pos- 
session holding  color  of  title 97  et  scq. 

for  chattels  annexed  to  real  estate 90,  95.  182 

for  chattels  removed  after  ejectment 96 

after  goods  have  become  part  of  another  thing  which 

is  the  principal l"" 

disposition  of  property  pending  suit 427,  428 

rule  concerning  perishable  goods  pending  suit  422,  423 

pending  suit,  plaintiff's  rights  only  temporary 445  ef  seq. 

damages  and  value  in — 

damages  in— compensation  the  object 460 

value  of  use,  as  damages,  pecuhar  to  replevin  . . .  492,  493 
suit  cannot  be  dismissed  to  avoid  a  hearing  on  ques- 
tion of  damages 452 

damage  must  be  claimed  in  declaration 450 

damages  in,  only  an  incident 451 

when  defendant  puts  it  out  of   power  to  serve  the 

writ 136,137 

value  recoverable  in 24-36 

damages  recoverable  in 21 ,  22 

damages  settled  in  replevin  suit 504,  505 

for  leased  property  does  not  lie  by  owner  pending  the 

lease 107 

plaintiffs  owning  separate  interests  cannot  join 145 

does  not  lie  at  suit  of  one  joint  tenant  against  his  co- 
tenant Uletseq. 

for  goods  taken  by  oflRoer,  what  is  a  sufficient  taking     134 

legal  title  will  prevail  over  equitable 110 

effect  of  on  landlord's  lien 621 

not  dismissed  for  officer's  neglect 609 

by  surviving  partner. 143 

effect  of  death  of  party  on  suit 682 

defense  by  sheriff 281 ,  286 

against  executor  and  a<lministrator  must  be  against 

him  personally »*-'•  >*-~' 

pari>ili  or  r(jrp()ration  may  bring •'>^-' 

proceedings  in  suit  esKcnlial  to  suit  on  bond 389 

writ  of— 

without  bond  qiuvshed •^•'•1 

for  an  undivided  interest  (plashed 1-1] ,  144,  145 

•  must  contain  HummoiiH  to  defendant 4'.'0 

'  maixlate  for  delivery 41U 

niUHt  descrilje  the  goodH    420 

lies  for  gmwls  in  jiirimliction  of  court  when  it  issued     421 

rightH  which  it  eonferH  <>u  plaintiff 421,  42:5 

does  not  diveHt  title  pen<liiig  Hint 422,  424,  425  ft  m/. 

net  anide.  effect  on  jiroperty '-'45 


788  INDEX. 

PAOC 

BEPLEYl'S— Continued. 

may  issue  without  order  for  delivery  of  goods  139,  140,  358 

must  appear  to  be  valid 278,  279 

how  far  a  protection  to  ofTicer  serving  it. . .  .  247,  278,  279 

return  to,  liow  far  conchisive 277 

what  return  must  show 421 

service  of  writ 247,  248 

officer  must  serve  writ  i)roiui)tly 274,  275 

does  not  authorize  seizure  from  defendant's  person.,     271 
officer  cannot   take  the    goods   from  a  stranger  to 

it 248  ef  seq. 

when  authority  to  enter  a  dwelling   272 

points  out  the  idential  goods 278,  279 

duty  of  officer  serving 270,  278,  279 

RESCINDING  A  SALE, 

for  fraud 335,  336 

return  of  the  consideration 307,  308 

diligence  required 307,  308 

RESTORATION  OF  GOODS, 

a  bar  to  replevin,  reason 130,  131,  132 

no  bar  in  trespass 131,  132 

exceptions  to  rule 131,132 

RESISTANCE, 

to  sheriff,  his  duty 10 

RETURN, 

defendant  may  claim 67 

bond  with  security  for 17,  18,  19,  348,  349 

condition  in  bond  to  make. . .    373,  374 

where  bond  is  not  given 351 ,  352 

ordered  only  when  it  appears  just 435,  436 

pleadings  must  claim 434 

adjudged  only  where  defendant  claims  it 434,  436,  437,  578 

cases  contra 578,  657,  658 

formal  prayer  for  not  essential 437,  438 

prayer  for  should  state  facts 436,  437 

defendant     asking     must     show     affirmatively     a     right 

to 281,  286,436,  437 

prayer  for  in  the  nature  of  a  cross-action 434,  436,  437 

defendant  suing  for  is  an  actor 434 

rights  of  parties  at  the  time  of  judgment  controls 441,  442 

judgment  for  usually  follows  verdict  for  defendant 440,  441 

what  is ' 137 

defendant  entitled  to  reasonable  time  to  comply  with  judg- 
ment for 648 

no  arbitrary  rule  governing  award 445 

plaintiff  cannot  dismiss  to  avoid  a  decision  on  the  question 
^  of 434 


INDEX.  789 

PA.OK 

RETURN— Con  fmi/ed. 

when  question  should  be  determined 446 

ordered  only  after  an  investigation. 338,  340,  435,  436,  445 

order  does  not  follow  a  verdict  as  a  matter  of  course 435,  436 

not  awarded  to  one  wlio  had  no  right  to  possession 435,  436 

part  of  property  may  be  ordered  returned 436 

may  be  adjudged  to  one  of  several  defendants 436 

part  of  property  ordered  to  one,  part  to  another  defendant. .     436 
never  ordered  unless  property  was  delivered  on  the  writ. .  443.  444 

where  plaintiff  had  a  limited  interest  in  the  property 445 

when  defendant  avoids  trial  on  merits 444 

insolvency  of  defendant  not  a  bar  to.  .  . 441 

when  awarded  upon  plea  of  noti  detimiet 609 

where  goods  are  delivered  without  bond 351,  352 

plaintiff  not  liable  for,  miless  ordered 434,  435 

trespasser  cannot  have,  on  plea  of  property  in  third  person  438,  439 
defendant   cannot  have,    under   plea  of   non  eepit  or  tion 

detinet 606 

when    judgment   for  does  not    settle  question   of  title   to 

property • 440 

whether  it  will    be  adjudged  when  defendant   succeeds  on 

plea  in  aViatement 444 

adjudged  and    not    made  a  breach  of   the   condition  to  re- 
turn   376,  378 

judgment  for,  not  necessary  to  constitute  a  breach  of  other 

conditions 370,  371 

award  of,  not  necessary 382,  383 

advisable  when  not  ordered,  when 434,  435 

damages  to  compel 503,  504 

liquors  sold  to   enable  vendee    to   violate    law   returned   to 

sheriff 445.446 

burden  of  proof  against,  is  in  plaintiff 441 

where  writ  abates  by  mistake  of  clerk 444 

when  adjudged  for  failure  to  prove  demand 338,  340 

prayer  fur,  when  waiver  of  <lemand 340 

does  not  neces-sarily  follow  failure  to  prove  demand 338,  340 

offer  unaccompanied  by  tender,  not  sufficient 374 

a  compliance  with  the  condition  to 381 

to  joint  defendants  joint  plea  necessary  to 560,  561 

awarded  when  parties  are  joint  tenants 446 

not  awarded  on  verdict  of  "  not  guilty  " 437,  438 

exc»'pti(jn  to  this  rule  in  ju.stice'a  court 438 

upon  plea  of  non  rrpit  or  mm  dititiit  return  notordered. .  436,  437 

duty  of  plaintiff  when  return  onlerod 4Jtt 

duty  of  plaintiff  in  cawi  of  ixTisliuliin  pro|H»rty 427,  428 

deliv«'ry  of  the  proi>«rty  to  another  by  order  of  court  pond- 
ing Hiiit  equivalent  to 30M 

when  adjudged  on  plea  of  jirojKjrty  in  tliwd  pvrm)n 438,  4i>'J 


790  INDEX. 

PAOB 

RETURN— Con  fmjted. 

right  of  defendant  to,  under  a  plea  of  property  in  third  person  565 

judgment  for  vahie  only  where  a  return  would  be  proper. . . .  438 

damages  only  allowed  where  defendant  is  entitled  to 503 

taking  by  sheriff  on  execution,  wlien  regarded  as. . . .    445 

wool  from  sheep  pending   suit   not  returned,    damages  to 

compensate 443 

of  young  of  animals  born  pending  suit 443 

who  must  be  made  to  274 

property  may  be  taken  on  writ  of 424 

landlord  may  have  judgment  for  goods  distrained 621 

writ  of,  description  in,  nuiy  follow  writ 163 

only  authorizes  taking  from  the  person  named 250 

writ  of,  must  describe  the  goods 447 

goods,  when  returned,  must  be  in  as  good  order  as  when 

taken 374,  375,  435,  436 

of  the  identical  goods  necessary 374 

partial,  a  satisfaction  of  the  bond  pro  tanto 356,  407 

contra 403 

not  return  of  part  of  a  single  whole,  e.  g.,  the  ma- 
chinery of  a  factory 407 

defeated  plaintiff  must  return,  without  waiting  for  process. .  375 
in  reasonable   time,    and    in    the    condition    when 

taken 375-377 

machinery  need  not  be  set  up  in  working  order. . . .  376 

plaintiff  must  .seek  out  defendant ...  375 

where  the  goods  are  bulky,  they  may  be  tendered  at  the  place 

wliere  they  were  replevied,  and  have  remained 375 

manner  of  return 375,  376 

sureties  not  bound  for  return,  unless  there  was  judgment 

for  return 409 

contra 402,  404 

when  bound,    must   return,    whether   execution    issued   or 

demand  made  or  not 375,  402 

plea,  averring  partial  return,  with  a  sum  of  money  for  the 

residue,  must  show  the  sufficiency  of  the  sum  tendered. .  402 

after  suit  on  the  bond,  goes  only  in  mitigation  of  damages. .  408 
alternative  judgment:  defendant  has  the  option  to  return, 

or  pa 3'  tlie  value 377 

contra 377,  665 

Hanlon  v.  O'Keefe,  55  Mo.  Ap.  528 

defendant  must  accept  the  goods 375 

not  unless  tendered  within  a  reasonable  time 375 

nor  unless  tendered  in  same  condition  as  when  taken  376 
where  the  goods  liave  been  injured,  and  the  statute 
requires  a  payment  to  make  good  the  injury,  the 

officer  is  to  judge  of  the  condition 377 

tender  before  levy  of  execution  is  sufficient 375 


INDEX.  791 

PAGE 

RETUn^— Continued. 

not  after  unsuccessful  appeal 375 

cases  contra 375,  376 

the  identical  goods  must  be  returned 377 

cases  where  the  rule  was  qualified 377,  378 

all  the  goods  must  be  returned 378 

in  reast)nable  time,  and  in  the  same  condition  as  when  taken, 
and  payment  of  damages  and  costs,  if  any,  satisfies  the 
judgment 380 

RETURN  OF  CONSIDERATION, 

on  rescinding  a  sale  for  fraud 307,  308 

when  must  be  made  307,  308 

what  amounts  to 307,  308 

RETURN  OF  OFFICER, 

of  the  writ,  wliat  it  must  show 277,  421 

conchisivc  upon  parties  and  privies 410,  667 

REWARD  OFFER  ED. 

finder  entitled  to,  before  delivery 116,  332 

REVENUE,  PUBLIC, 

replevin  must  not  be  permitted  to  interfere  with 265  et  seq. 

RIGHTFUL  POSSESSION, 

what  is 334,  335 

.sufficient  against  wrong-doer  146,  557 

sufficient  to  sustain  replevin  against  owner 117 

whether  sufficient  to  sustain  replevin 106,  557 

continues  to  be  rightful 323,  325 

by  one  joint   tenant 149 

from  one  who  wrongfully  took,  demand,  when  necessary.  .  .  .     325 

agent  may  have 128 

contract  to  purchase  does  not  confer 126 

RIGHTS, 

of  plaintiff  poniling  suit  only  temporary  423,  445  et  seq. 

RIGHT  OF  PROPERTY, 

carries  with  it  a  right  to  possession 117,  118 


SALE, 


of  goods,  when  plaintifT  pst«)pi>e<l  by 1.38 

in  grxxl  faith,  replevin  does  not  lie  after 131,  132 

on  credit,  non-payment  d<»eH  not  warrant  rescission 812 

by  tliicf  or  trcspjiHsi-r  conveys  no  title 178,  309,  335,  336 

by  fraudubwit  pureliawer 309 

by  bailtMj  for  b-Hs  prin-  than  authorized. .    297 

witliout  authority 294-296 

of  g'KxiH  \i\Kiu  coriditioUH ...     312 

wb«Te  viMidor  HtipulattM  to  retain  title 312,  313 

of  chattelH  mortgaged  dcH'S  not  duf«-iit  mortgng«<-  !'<'»,  I'^'V 


792  INDEX. 

PAOK 

SALE — Continued. 

on  conditions  not  complied  with,  replevin  lies  against  cred- 
itor seizing 313 

on  execution  convej's  all  the  title  the  defendant  had 279 

for  taxes,  if  illegal,  does  not  transfer  title 225 

owner  may  replevy  from  purchaser  at 225 

of  property  by  plaintiff  pending  suit  421,  422,  423 

does  not  affect  the  rights  of  the  real  owner 424,  425 

not  an  al)atement 422,  538 

when  plaintiff  is  defeated  owner  may  replevy  424,  425 

induced  by  fraud,  vendor  may  rescind  and  replevy 59,  298 

of  perishable  property  pending  suit 427,  428 

title  by,  suffices,  though  there  be  no  delivery 60 

not   if   the  thing  not   identified  or  separated   from 

the  mass  of  which  it  is  a  part 61,  63 

title  may  pass,  against  the  express  words  of  a  writing  if  this 

is  the  intention  of  the  parties 61 

and  tliough  there  is  no  segregation  from  the  mass. . .       62 

delivery  unnecessary  to  pass  title 60 

symbolical  delivery 62,  67 

wliat  amounts  to  delivery 57,  63,  67 

every  sale  presumed  to  be  for  cash 64 

^  title  does  not  pass,  though  there  be  a  delivery,  until 

payment 64 

seller  may  replevy 64,  65 

but  not  after  unreasonable  delay,  as  against  a  bona 

fide  purchaser 64 

linconditional  delivery  is  a  waiver  of  paj'ment 64 

delivery  for  examination  or  trial,  not..   64 

nor  delivery   without  demanding  payment,  where 

this  is  the  custom 64 

nor  laying  carpets,  hanging  curtains,  etc.,  on  prom- 
ise of  payment  after  completion  of  the  job 64 

defendant  showing  no  title,  cannot  impeach  sale 

for  irregularity 77 

SALVORS, 

sale  by,  conveys  no  title 126 

have  alien  on  goods  saved 126 

SEARCH. 

when  sheriff  may  enter  dwelling 272 

SEAL, 

bond  must  be  under 365 

SECOND  DELIVERANCE, 

writ   of • 17,18 

SECOND  REPLEVIN, 

first  discontinued,  no  bar  to,  and  goods  having  been  det-ained 
by  defendant,  plaintiff  recovers  damages  from  the  ori- 
ginal detention 454 


INDEX.  793 

SECOND  REPLEVIN— CoHf/nHfd.  page 

and   the   second    action    lies  after   discontinuance, 

without  actual  return  of  the  goods  84 

oflBoer  in  possession  under  one  writ  of  replevin,  not  liable  to 

a  second  action,  even  by  a  stranger 534 

defendant  in,  may  set  up  the  first  action  and  bring  in  the 

otiier  party  thereto 535,  536 

SECURITIES. 

plaintiff  reciuired  to  give 19 

sheriff  must  take  before  delivery 273 

two  required   348,  349,  366,  367 

bound  by  the  acts  of  principal 384 

liable  for  express  covenant  only 382 

on  bund  held  to  a  stri<!t  liability 386,  387 

liability  of,  not  extended  by  implication 883 

not  liable  for  a  greater  sum  than  the  penalty  of  the  bond. . . .     384 

have  a  right  to  make  return  if  adjudged 382 

not  liable  for  costs  unless  so  provided 384 

bound  by  the  result  of  suit 382,  384 

not  bound  or  discharged  by  settlement  without  their  consent.     385 

not  bound  by  arbitration  ...    385 

liable  tliough  the  name  of  co-security  was  a  forgery 386,  387 

liable  only  for  damages  adjudged,  when  383 

defendant  may  except  to  273,  359 

excepted  to  failing  to  justify  does  not  discliarge  them 391 

cannot  be  released  by  deposit  of  money ...     305 

on  plaintiff's  bond  not  liable   when   defendant  retains  the 

possession 353 

return  of  nulla  buna  as  to,   not  conclusive  as  to  their  sol- 
vency  349,  350 

on  bond  may  l>e  released  and  others  substituted 365 

court  may  order  new  to  be  f urnisiied 366,  367 

discharged  by  delivery  of  the  property  on  order  of  the  court.     398 

SERVANT. 

po-ssession  of,  is  po.s.se.ssion  of  the  master 135 

selling  goods  without  authority  can  convey  no  title 291,  292 

not  a  pro[>er  defendant  for  nuuster's  goods 135 

refusjil  to  deliver  by.  when  not  a  conversion 345,  346 

demand  U|H)n,  not  suflicii-nt .H4I ,  342 

cannot  sustain  r()|>lf'vin 114,  525 

goods  taken  from,  owntM'  may  have  replevin 126 

SERVICE, 

bond  given  after,  in  valid 387.  8H8 

must  be  in  a  le^nl  muiiner 270 

itnprojHT,  an  nlntH  nuiy  isnue 420,  421 

SEPARATION. 

of    gfMjdH   H«)ld    from     bulk,    what    \h    Hiifllcient    to   Kustuin 

mplevin 107  pf  srq. 

of  g(x»dM  mixed,  whun  immaterial  and  imi»oHMible 174  cf  srq. 


794  INDEX. 

PAGE 

SET-OFF, 

question,  how  far  investigated  in  replevin 517 

in  some  courts,  not  permitted 581 

cases  contra 581,  582 

in  the  action  on  tlie  bond 409,  410 

tlie  price  of  the  goods,  if  unpaid  for 410 

any  indebtedness  from  obligee  to  obligor 409 

not  an  indebtedness  of  one  plaintitf,  out  of  two  or 

more 409 

SETTLEMENT, 

does  not  discharge  securities 385 

SEVERANCE, 

of  property  from  real  estate 275 

does  not  change  title 94 

wliat  amounts  to 93 

SEVERAL  DEFENDANTS, 

each  entitled  to  demand 341,  342 

SHERIFF, 

by  ancient  writ  authorized  to  act  as  judge 7 

authorit}'  of,  under  the  writ  of  7iu)i  oiuittas 8 

wlien  interested,  bond  must  be  to  coroner 353 

required   to  have  four  bailiffs   for  the  purpose  of  making 

replevin 10,  note 

executed  process  by  bailiff 10,  note 

must  take  bond 17,  18,  19,  263,  264 

liable  as  a  trespasser  if  he  served  the  writ  without  taking 

bond 348,  349,  361 

must  see  bond  properly  executed 368 

must  see  that  the  penalt}'  in  bond  is  large  enough 360 

responsible  for  sufficiency  of  securities 348,  349,  544 

mfiy  take  propertj'  to  appraise  it 360 

not  bound  by  value  stated  in  affidavit 360,  544 

bond  payable  to,  when 362,  381 

bond  originally  designed  to  indemnify 358,  381 

duty  to  return  the  bond  with  the  writ 359 

may  assign  bond  to  defendant 19,  348,  349,  350 

assignment  of  bond  does  not  release 349,  350 

a  release  of  the  securities  releases 349,  350 

parties  to  suit  on  bond  cannot  disciiarge  it  to  his  injury 396 

when  may  pursue  property  to  another  county 421 

entitled  to  indemnity   430 

duty  in  executing  tlie  writ 429,  432 

might  break  and  enter  house 10 

when  prior  possession  of,  is  sufficient 562 

property  taken  on  a  writ  of  replevin  in  custody  of.  .424,  425  et  seq. 

must  obey  process  at  his  peril 245,  246 

wrongful  levy  of    execution    on  goods    of    a    stranger    to 

it 245,  246  et  seq. 


INDEX.  795 

SRERIFF— Continued.  page 

acquires  special  property  in  goods  levied  on 126,  127,  279 

title  acquired  by  execution  not  divested  by  replevin 425 

taking  goods  on  second  execution,  when  regarded  as  a  return 

to  him 425 

seizing  property  which  has  been  replevied  from,  is  equiva- 
lent to  a  return 381 

execution  not  sufficient  without  judgment  to  support  a  claim 

for  return 562 

damages  against,  in  suit  by  assignee  of  creditor.    480 

damages  to,  as  against  a  stranger 498 

damages  to,  as  against  general  owner 498 

not  entitled  to  value  of  use  as  damages 493 

liable  for  damages  for  wrongful  seizure 497 

acting  in  good  faith,  exemplary  damages  not  allowed 497 

return  of,  upon  writ 421 

what  ills  return  must  show 277 

plea  by,  must  sliow  his  process 563 

suit  by.  may  be  in  his  iiuiividual  name 398 

See  Officer. 
SLAVES, 

replevin  lies  for 89 

SPECIFIC  PROPERTY. 

recovery  of,  the  primary  object 24,  36 

SPECIAL  PROPERTY, 

sufficient  to  sustain  replevin l\h  et  seq. 

acquired  by  officer  by  levy  of  process 126,  127,  279 

owner  of.  may  sustain  replevin Ill  et  seq. 

SPECIAL  DAMAGES, 

must  be  alleged  in  declaration 553 

STATE  COURT, 

rei)levin  in.  against  United  States  Marshall 258  et  seq. 

STATUTES,  ENGLISH, 

the  foundation  of  law  concerning  bonds  in  this  country 349 

STATUTE, 

17  Car.  2.  Ch.  7 19,  31H.  349 

1 1  Geo.  2,  Ch.  19,  t^  23    348.  319 

21  n.  8,  c.  19,allowed  damages  to  defendant 13 

Westm.  1.  Ch.  17 272 

Westm.  2d 17,  IH 

3  an.!  4  W.  &  M 470 

pnjhibiting.  or  interfering  with  the  action  of  replevin; 54 

providing  for  dis<!hargo  of   tlm   officer,   wrongfully  seizing 
goodh,  an«l  the  substitution  of  the  piaintilf  in  his  writ, 

unconHtitutional 54 

or  burring  an  action  againnt  the  officer  who  haHtukon 

tin  indfuinifying  bond 51 

de<-lariiig  Hiih-  by  any  iriHolvi-nt  void,  implied  excep- 
tion in  favor  of  Imuui  Jhle  purcluuier 315 


796  INDEX. 

PAOB 

STATUTE  MARLBRIDGE, 

liow  came  to  be  enacted 2,3 

defects  in 15 

STATUTORY  BOND, 

necessary  before  delivery 351 

STATUTORY  PROCEEDINGS, 

on  bond     388 

STOLEN  PROPERTY, 

thief  takes  no  title 288,  290,  291 

owner  may  retake 288 

demand  not  necessary  for 325 

deposited  with  a  carrier,  owner  may  replevin 337 

innocent  receiver  of,  when  liable 333,  334 

SUIT, 

when  must  be  brought,  as  affecting  damages 472 

change  of  ownersliip  pending,  effect  of 441,  442 

on  bond — 

defendant  may  bring,  when 349,  350 

irregularities  in  issuing  writ  will  not  deffeat 391 

material  facts  in  replevin  suit  must  be  set  up 389,  390 

SUNDAY. 

bond  executed  on,  void 366,  367 

excluded  in  computing  time  for  giving  bond 366,  367 

SUMMARY  PROCEEDINGS  ON  BOND, 

can  only  be  resorted  to  where  the  bond  conforms  to  the 

statute 388 

SURETIES  AND  PLEDGES, 

meaning,  etc.,  of 11,  12 

SURVIVING  PARTNER, 

entitled  to  possession  may  sustain  replevin 526 

SURRENDER  OF  PROPERTY, 

by  order  of  court  pending  suit,  when  a  defense 568,  569 

before  suit  a  bar  to  damages 451 

SYMBOLIC  DELIVERY, 

wlien  sufficient  to  sustain  replevin 167 


T. 

TAKING, 

what  is  a  wrongful 49 

time  and  place  must  be  stated 555 

not  necessarily  a  conversion 328,  329,  330 

owner  taking,  when  not  liable  in  replevin 47 

as  an  act  of  charity,  not  a  conversion 331 

by  tliief  or  trespasser  from  a  thief  or  trespasser,  owner  need 

not  demand 327 


INDEX.  797 

TAKlNQ—Co7itiniied.  paob 

actual,  necessary  to  sustain  replevin 132,  133 

by  an  officer,  what  is  a  sufficient 134 

an  agreement  to  take  will  not  sustain  replevin 133,  133 

TAX, 

seizure  for  must  be  by  an  officer 227 

seizure  for  tax  of  another  person 223 

property  seize<l  for,  owner  may  sue  in  trespass  or  trover. . . .     223 
TAX,  GOODS  TAKEN  FOR  A. 

replevin  lies  where  goods  are  taken  for  a  tax  on  land,  and 

the  land  alone  is  liable 227 

and  where  th»,>  goods  are  not  assessable  at  all 227 

and  where  the  tax  is  levied,  without  authority  to  tax 

the  particular  goods 227 

and  where  the  goods  are  seized  in  the  hands  of  one 
who  purchased  them,  while  they  were  free  of 

lien 227,  229 

does  not  lie  where  the  statute  prohibits  the  replevin  of  goods 

taken  ' '  under  process  " 227 

nor.   where   the  only  objection    taken    is,  that  the 

goods  are  not  assessable  to  plaintiff 227 

nor  merely  because  the  officer  has  already  advertised 

lands  for  sale  for  a  part  of  the  tax 228 

nor  for  mere  irregularities  in  the  tax  proceedings 228 

nor  for  extravagance  in  the  levy   228,  229 

nor  for  failure  to  notify  electors  of  the  district,  of  the 

tax  meeting 228 

nor  for  misnomer  ;  nor  for  the  issue  of  the  warrant 
in  two  parts  ;  nor  becau.se  the  warrant  was  not 
present  at  the  time  of  the  levy  ;  or  because  war- 
rant was  already  returned  ;  or  becau.se  goods 
seized  without  any  previoiLs  demand  of  the  tax  ; 
or  the  wife's  goods  were  taxed  in  the  name  of 
the  husband  ;  or  the  warrant  is,sued  irregularly, 
or  contrary  to   law  ;  or  years    have  intervened 

since  the  levy 228 

or  the  ordinance  authorizing  a  local  tax,  was  obtained 
by  fraud  ;  or  the  townshij)  treasurer  failed  to 
make  returns  to  tlie  county  treasurer  before  the 
emanation  of  the  tax  warrant:  or  t lie  tax  was 
paid  snb.sequent  to  tlie  institution  of  tiio  re- 
plevin ;  or  the  tax  was  excessive,  unless  the  just 

amount  is  tendered 339 

where  it  is  shown  that  the  g(K)d.<   were  taken  for  a  tax.  the 

plaintiff's  rium  in  at  an  end 339 

the  judgment  nhould  bo  for  return 2^'<> 

TAX  SALE. 

if  illegal  diM's  not  transfer  tith«    .  .  ~35 

and  the  owner  may  replnvy  fr<»m  jiurrha.'MT  '-"-  » 


798  INDEX. 

_      _  PAOE 

TAX  WARRANT, 

property  seized  on,  not  repleviable 217,  218  et  aeq.  545 

form  of,  proliibition  of  replevin  in  such  cases 219-221 

irregularity  in,  cannot  be  tried  in  replevin 218  et  scq. 

must  be  regular  on  its  face 225,  226 

must  purport  to  be  issued  by  regular  authority 225 

sham  warrant  no  defense 225,  226 

must  be  for  a  tax  which  may  legally  be  levied. . . .  225,  226  et  seq. 

officer  levying  cannot  go  out  of  his  bailiwick 227 

defendant  must  produce 225 

bare  assertion  by  defendant  that  holds,  not  sufficient  225 

TENDER, 

necessary  to  a  compliance  with  order 374 

of  rent  need  not  be  brought  into  court  613 

when  in  time  to  avoid  distress 613 

TENANCY  IN  COMMON, 

how  produced  by  mixture 145,  146,  170  et  seq. 

by  confusion,  does  not  arise   unless  separation   is  impos- 
sible    170  et  seq. 

one  paying  the  whole  price,  has  a  lien 120 

feeding  and  sustaining  an  animal  held  in  common,  not  en- 
titled to  a  lien 121 

cannot  replevy  from  co-tenant 142 

nor  from  bailee  of  all  the  co-tenants 142 

nor  from  an  officer  levying  on  the  interest  of  co-tenant 142 

nor  can  all  the  other  co-tenants  replevy  from  one 143 

nor  can   several,   against  one   who   is   co-tenant  with  any 

plaintiff 143 

the  judgment  must  restore  the  statu  quo 144 

land  let  on  shares,  landlord  and  tenant  are  cotenants  of  crop.     145 
purchaser  of  a  distinct  part  of  the  hull  of  a  vessel,  not  co- 
tenant  with  the  seller,  and  maj'  replevy 145 

mortgage  by  one  co-tenant  to  the  other,  does  not  destroy  the 

co-tenancy 1 45 

nor  does  a  futile  attempt  to  foreclose  such  mortgage.     145 
nor  does  a  conditional  purchase   by  one   from    the 

other,  where  default  is  made 146 

co-tenancy  may  be  severed  in  part 145 

one  co-tenant  may  recover  against  a  wrong-doer 146 

TENANT, 

may  pay  rent,  and  take  goods  distrained 423 

THIEF, 

takes  no  title 288,  290,  291,  335,  366 

and  can  convey  none 296,309 

change  in  form  of  stolen  goods  by,  does  not  change  title. ...     178 
di.stinction  between,  and  fraudulent  purchaser 309 

THIRD  PERSON, 

plea  of  property  in 563,  564 


INDEX.  799 

PAGE 

TIMBER  CUT, 

damages  in  such  case 477,  479,  507,  508,  509 

when  value  estimated 507,  509 

wlien  mortgagee  may  recover 101  et  seq. 

TITLE, 

evidence  of,  must  not  be  stated 554 

tried  in  replevin 39,  40 

what  is  sufficient 106 

not  necessary  to  sustain  replevin 12 

prior  rightful  possession,  when  sufficient 112 

not  necess;irily  determined  in  replevin 109 

facts  must  be  averred  without  554 

not  changed  by  severance  from  real  estate 94 

bailee  without  authority  cannot  convey 291,  292  et  seq. 

assertion  of,  by  a  tresspasser 100 

not  affected  by  delivery  on  writ  of  replevin 424,  425  et  seq. 

acquired  by  plaintiff  pending  suit 422 

when  the  issue,  good  must  be  shown 117 

plaintiff  recovers  on  the  strength  of  his  own 54 

a  special  property  sufficient ;  or  a  title  liable  to  forfeiture. . . .     55 

plaintiff  need  only  sliow  title,  as  against  defendants 55 

prior  possession  is  title 56 

though  not  required 55,  56 

prior  possession  of  officer  under  process 73 

prior  possession  originating  in  wrong 56,  59 

a  mere  equity  with  possession 56 

a  mere  lien  without  possession,  not  title 55,  127 

purchase  at  private  sale,    not  sufficient  where   there  is  no 

identification Ct 

or  no  identification  as  to  part,  where  the  sale  of  several  things 

is  an  entirety 61 

or  where  anything  remains  to  be  done  by  the  vendor. .     63 

unless  this  is  the  intention  of  the  parties 62 

purchaser  at  private  s;ile,  completed,  may  replevy 60 

mere  agreement  to  manufacture,  not  sufficient 63 

nor  a  mere  equity  without  possession 69,  532 

unsuccessful  candidate  in  a  voting  contest 532 

chattel  mortgage  sufficient,  where  mortgagee  is  entitled  to 

{M^ssesHJon 69 

not  where  mortgagee  has  as.signed 69 

pledge  suffi<Mi'nt 70 

lien,  with  {xiHsesHion  .  .    72,  7.'^ 

bailee  may  liavo  replevin  aguinRt  a  stranger 73 

or  f»ne  who  obtains  th«<  g^MwIs  by  u  trick    73 

plaintiff  must  be  iMititU'd  to  iMuiDMliat)'  i><).Hm'SHion   58 

if  f-ntitled  roiiditionally,  must  slinw  |M<rforuiance  ut 

th«i  ffjridition 58 

^  tranHfcr  l>y  pluintifT.  how  far  it  itii|>uirH  liw  lu-limi 68 


800  INDEX. 

PAOK 

TRADE  FIXTURES, 

replevin  for 92 

TRAVERSE, 

denial  of  plaintiff's  right 567 

TREES, 

replevin  for 93 

TRESPASS, 

one  taking  his  own  goods  peaceably  is  not 237,  238 

takes  no  title 335,  336 

acquires  no  title  by  his  trespass 288,  290 

even  tliough  the  existing  possession  be  wrongful 288 

cannot  convey  title  by  sale 178 

distinguished  from  replevin 43,  44,  45 

when  concurrent  with  replevin 42 

not  necessarily  a  conversion  329,  330 

when  a  conversion 333 

enhancing  value 178,  479 

TRESPASSER, 

cannot  plead  property  in  third  person  and  have  return 566 

cannot  defend  on  plea  of  property  in  a  third  person 438,  439 

increasing  value  by  his  labor 479 

cannot  be  allowed  to  make  a  profit 480 

cannot  resist  claim  for  damages  by  showing  destruction  of 

property 501 

who  sells  goods  cannot  compel  the  owner  to  accept  the  price 

at  which  they  were  sold , ,. .     479 

TRESPASS  OR  TROVER, 

for  goods  wrongfully  seized  for  tax 223 

TRESPASSER  AB  INITIO, 

taking  up  an  estray  without  observing  the  statute 232 

proceeding  irregularly  under  process 283 

officer  proceeding,  after  becoming  guardian  of  the  plaintiff 

in  the  writ 128 

TRIAL, 

ancient  method  of... 11,  12,  15 

right  to  begin  and  conclude , 673 

governed  by  facts  existing  when  suit  was  begun.. 441,  442,  673,  674 

all  matters  in  dispute  in  the  case  should  be  settled 678 

plaintiff  must  make  out  his  case  in  opening 674 

what  questions  for  the  court,  and  what  for  the  jury 675 

instructions 676 

TROVER, 

distinguished  from  replevin 45 

when  concurrent  with  replevin 42 

TRUSTEES, 

may  sustain  replevin  521 


INDEX.  SOI 

U. 

PACK 

UNDIVIDED  INTEREST, 

wlieii  replevin  lies  for 25,  26,  62,  143,  147 

UNITED  STATES  MARSHAL. 

replevin  against,  by  writ  from  State  Court 2'tS 

See  Sheriff,  Officer. 


USE, 


value  of,  damage  peculiar  to  replevin 492,  4915 

never  allowed  in  trover 45"),  4r)6 

when  allowed  as  damages 455,  45G,  491 

when  value  of  is  awarded,  other  daniages  not  allowed 498 

value  of  not  allowed  a  pledgee 49;> 

or  one  who  has  no  right  to  u.se 49:> 

not  allowed  as  damages  unless  the  property  was   valuable 

for  use 49;!,  494 

cannot  be  recovered  with  depreciation 402,  403 


VALUE.    See  Action  on  the  Bond,    Damages. 

recoverable  in  replevin 24.  36 

eflfect  of  juilgment  for 648 

judgment   for.  effect  of  on  securities 343 

plac^e  where  attaclies 503 

at  the  place  of  taking 476  ct  srij. 

evidence  of.  at  an  adjacent  market   Aid  el  snj. 

removal  of.  as  affecting  <inestion  of  damages 476  <  t  .s-,(/. 

highest  market,  what  is 473 

at  an  a<ijacent  market,  as  showing 470 

between  conversion  and  judgment,  when  allowed.  .  .     470 

qu;ili(ications  of  tiie  rule  allowing 472 

when  regarded  as  attaching 44J7 

wlien  estiiiKiteil  from  time  of  conversion 408,  M"') 

when  tluctuiiting  or  unchanging.  ...    401.  ^OJ 

ditninution  in,  n<»t  allowml  when  use  is  given 402.  403 

changes  in.  ami  the  effect  on  (incstion  of  damages 472 

de}»reciation  in.  when  an  element  of  tiamages   402 

change  in.  by  lal)or  of  defendant  trespusner  cannot  recovei  479 

when  given  as  damages  in  .suit  on  liond ::97 

and  dan. age  must  bo  separately  aHses.scd ."»(>0 

of  varioUH  articles  Htated  in  gross 395 

of  M^parate  articles,  when  verdict  nuist  find 031 

when  verflict  must  find 0,30 

defendjint  not  entitled   to,  unles8  he   show  liim.self  entil  led 

U)  return \'M 

not  adjudged  lo  defendant    uniens  he  <daiin  and  Hhow  prop- 
erly     4;«J 

wlien  a  nieasiM'e  of  damages  .    fOO  rt  sfq. 

f)l 


S02  INDEX. 

PACE 

VALVE— Coufi  lined. 

of  goods  not  ol)tained  on  the  writ 465 

interest  upon,  from  wlien  coniputeil 405 

option  to  pay  or  return 50:{ 

defeiuliint  cannot  ])ay  in  lien  of  rt'turn :{T4,  ;)T5 

defendant  lial)ic  for.  after  deatii  or  destruction  of  tlie  fliattel     :]95 

mode  of  ascertaining,  to  fix  penalty  in  bond IW) 

may  be  agreed  upon 369 

parties  may  agree  upon . .     360 

stated  in  bond,  bow  far  binding 395 

bond  must  state 369 

whether  to  be  statetl  in  writ  420 

stated  in  afTidavit.  may  be  taken  in  fixing  bond 544 

appraisement  of,  not  binding  in  assessment  of  damages..  481,  482 

appraisement  of,  how  far  binding 395 

stated  in  atlidavit,  how  far  binding  on  the  parties 481,  544 

stated  in  affidavit,  how  far  binding  on  sherifT 544 

how  value  may  be  established 459,  467,  597,  59S 

admissions  in  tlie  pleadings  conclusive 590,  598 

affidavit  in  replevin,  evidence  against  the  plaintiff 651 

not  against  the  officer 598 

value  at  a  previous  date,  admissible 598 

what  the  party  paid,  not  admissible 652 

jury  may  refer  to  their  own  knowledge,  as  to  the,  of  house- 
hold goods 602 

the  face  value  of  municipal  bond  presumed  the  market  value    662 
of  what  date  the  value  is  to  be  estimated 662 

VARIANCE, 

between  bond  and  affidavit  no  defense  to  suit  on  bond 394 

between  bond  and  affidavit  must  be  pleaded  in  replevin  suit.     391 
between  writ  and  declaration 162,  163 

VENDOR, 

having  voidable  title,  when  may  convey  good  title 335,  330 

when  he  may  sustain  replevin  against  a  creditor  of  an  in- 
solvent buyer 307 

VENUE, 

for  tilings  unlawfully  severed,  the  action  lies  in  any  juris- 
diction wluTe  found 33,  677 

need  not  appear  that  the  goods  are  detained  within  the  state.     676 
in  what  county  the  action  lies  676    677 

VERBAL  GIFT. 

not  valid  without  delivery 160 

VERDICT, 

court  may  correct  form  of 623 

court  cannot  change  substance  of 623 

eacli  party  a  right  to  submit  all  proper  issues 624 

each  party  has  a  right  to,  on  all  issues 623 

must  pass  on  all  issues 623.  624 


I-NDEX.  S^^3 

VERDICT— (?07;f(«»prf.  ''*'"' 

exactness  required  in  replevin 623  6'i')  626 

sepjinite  defendants  may  have  separate 629 

may  find  for  both  parties 624 

against  both,  form  of  judgment 4r,l 

must  be  consistent  with  itself OoO 

where  title  and  right  of  possession  is  in  issue,  must  find  on 

both  sides 625   626 

general,  not  sufficient,  when  issues  are  conflicting 485 

must  be  certain 629 

repugnancy  is  fatal 630 

may  be  general  if  it  finds  all  the  issues 482,  485 

should  not  merge  different  issues 628   629 

'•  we  find  the  issues  for  the  defendant  " 484,  485 

conflicting  issues,  how  settled  in 630 

courts  incline  to  sustain 628,  629 

expressing  opinion  of  law  not  suffi(;ient 031 

property   in  plaintiff,   does   not  find  whether  property   was 

taken  or  detained 625,  626 

for  $28,  on  plea  of  property,  effect  of 484.  485 

"  not  guilty  ;  "  what  responsive  to 625 

statutory  exceptions 625 

return  not  allowed  on 430.  4:;T 

in  justice  courts,  a  return  ordered 438,  625 

"  for  plaintiff  ;  "  effect  of,  on  several  issues •1S5 

conditional,  not  sufficient 0:U 

when  party  lias  only  limited  interest 031 

"  for  defenilaiit."  on  non  detintiet,  what  it  imix)rfcs 625.  02(5 

need  not  be  in  express  words 026 

must  fiml  damages ($;{•> 

when  value  of  property  must  be  found 030 

where  defendant  claims  f)nly  lien O.'O 

for  defendant,  not  necessarily  followed  by  return I.;."),  430 

description  of  goods  in,  may  fcdlow  writ 103.  029 

must  be  uyxm  tiie  ultimate  facts,  and  conform  to  the  statute.     032 
must  Ix*  certain,  and  Hufficienfly  full  to  enal>le  tliu  court  to 

enter  the  proper  judgment 034 

must  conform  t"»  the  issues  and  find  all  the  iKgues 033 

and  as  to  all  the  gotxln,  even  those  not  replevied 033 

may  }»e  in  favor  of  one  defendant  against  another. .  .     0;(2 
and  against  one  defendant  for  all  the  gouds,  and  an- 
other for  |»art 6,32 

not  rejected  for  infurinalily  or  surphmnge  0.15 

the  maxim  id  certinn  ent  applieH.  . .  034 

instancen  of  <lefective  veniicls 0.33,  03.5-639 

may  refer  Ut  the  [deading,  for  tlie  deHcri|itii>n 034 

wher«  Hevenil  articlnn  are   replevied,  and   the  vurdi(*t   in  in 
fnrf>r  of  ulnintHf.  a^  to  [>mf .  ;md  in   fav.ir  of  defiMidaiit . 


804  INDEX. 

PAGE 

VERDICT— Continued. 

as   to   iesi(lii(>.    it   must   identify    tlie   particular   tilings 

awarded  to  eacii ();i4 

to  be  construed  as  a  wliole  ;  error  in   one  part   may  l)e  cor- 

recteil  hy  reference  to  anotlier filj.")  (;:!(» 

reas()Mal)lc  iiitfiulinents  may  l>c  iii.inl^^ed G;}4 

not  in  t!io  (^ase  of  special  (illdin^:: (y.i~t 

tlie  court  will  have  regard  to  tlie  manner  in  wliicli  llie  issues 

were  submitted (■);)4 

and   tlie   legal   presumption,    tliat    the   goods   were 

found  in  the  possession  of  defendant 6i}5 

instances  of  particular  verdicts  construed (5:^4-638 

when  the  verdict  must  find   the  property  in   the  goods,  and 

how (i:i9 

when  the  value  must  be  found G-'Jl,  (J;{9-040 

wlien  the  separate  value  of  the  separate  articles  must   be 

found G40 

how  the  goods  should  be  described 642 

general  verdict 63^ 

when  objections  to  the  verdict  should  be  taken 643 

amendment  of  the  verdict 642 

VINDICTIVE  DAMAGES, 

meaning  of  term 511.512 

when  allowed 510 

actual  malice  must  be  shown 512 

rules  governing  assessment  of 51 1.  513 

illustration  of  the  rule 513,  514 

general  rule  governing 510,  51 1 

as  against  officer 516 

VOID  WRIT, 

no  protection  to  officer 270 

W. 

WAIVER. 

of  right  to  demand 340 

of  lien,  what  will  amount  to 345,  346 

of  defects  in  bond 368 

of  conditions  of  sale,  what  is 313  e<  }fe<]. 

WAREHOUSEMEN, 

entitled  to  lien,  may  sustain  replevin  118  c/  ftrq. 

WARRANT  FOR  TAXES.    See  Tax  Warrant. 

W\\TCH  WORN  ON  PERSON, 

not  subject  to  writ  of  replevin 271 

WILLFUL  CONFUSION  OF  GOODS. 

all  belong  to  innocent  party 170  ct  seq. 

WITHERNAM, 

writ  of 14 


INDEX.  go5 


WRIT. 


TAGS 


of  replevin,  anciently  not  returnable 6.7 

<i/«n.s-  ami  plurus i:{ 

pluries.  retmnable y 

noil  oinittas M 

of  pone  and  rerordari 1  ;t 

issued  only  ;it  Westminster '.> 

a  writ  of  rij;lit :]t) 

anciently  autliorized  slierifF  to  act  as  judge 7 

anciently  did  not  contain  surnnions  to  defendant .'         •• 

must  contain  suniiiions  to  defendant MG,  -IJO 

de  proprirtato  ]>}\tbanda 7 

of  second  deliverance 17,  ix 

alias  may  issue  to  another  county -lOO,  ^-.M 

when  niay  issue '.][)\ 

not  dismissed  fi)r  otticfi's  neglect (tOO 

issued  without  alfitlavit.  a  nullity r>4<t.  ."ill 

need  not  sliow  th.it  afhdavit  luis  been  filed -J'JO 

must  follow  ;i(Ti  l.ivit .">ll 

must  describe  the  goods  .so  that  tlie  officer  can  find 1.')4 

description  in.  must  lie  certain HV2  tt  kii/. 

duty  of  clerk  to  issue 4'2S 

vrlien  nnist  de.scribe  tlie  goods 4'JO.  4'2X 

when  des<^iription  not  essential 4'JO.  4*28 

must  describe  the  goods  particularly l."i:{ 

officer  may  refuse  to  serve  if  description  is  uncertain. .   Ifir?  it  sai. 

need  not  state  value  of  gootls 4 lit 

to  wliom  addressed 4 lit 

when  objections  to  nuist  be  taken 4'J!» 

amendnieiit  of 419.  4'.M> 

bond  a  i)rereiniisite  to  delivery  on ;{41).  :{"»() 

delivery  on.  <*onilitional  upon  the  prior  execution  of  Ixiiid.  :J4W,  It'iO 

service  witiiout  bond.  siierifT  liable ;J4><.  .'M'.i 

mandate  for  delivery  on 41!) 

nee<l  not  show  that  bond  was  filml 4J0 

does  not  authorize  seizure  from  person  i>f  <lefendant 271 

waived  by  a|>|M'arance .    ...     4'.*0 

power  and  duty  of  o(li«*ei'  with '»*70 

officer  must  serve  writ  proni|»lly 274.  27.'i 

how  must  Im«  served 274,  27-"> 

llir-  firht  duty  of  the  sherilT  to  seize  the  go<Mln 4'.".' 

duty  of  piaiut  ilT  to  point  out.  tlie  g*Mids  to  ofTh-er 4.'!ii 

sherifT  miint  tnke  iMuid  n<'cordiiig  to  the  Hlatute 4:'.0 

and  if  tliM  HUitute  reipiireH.  uiukI  cuune  nn  appnii-He 

m*nt  to  1m?  mft«I«» 4.10 

may  detain  t  h«  ^o**'''' f^  rf^iHonuhld  tim«,  for  thitpur- 

|K»He  of  (be  appiiiiKemeiit 4?K) 

n»ar  occupy  plHimitT'i  prciiiini-H  i:i() 


806  INDEX. 

PAOK 

wmT—Contimu'd. 

may  break  the  outer  door  of  a  dwelling 4:51 

cases  contra 4'M 

having  made  a  seizure,  may  break  the  door  in  order 

to  remove  the  goods. .    . .    4:51 

may  require  indemnity  from  plaintiff 430 

may  tiot  execute  his  writ  in  another  county 4;{1 

nor  proceed,  after  appointed  guardian  of  the  plain- 
tiff   4;;i 

must  obey  the  writ,  even  though  he  knows  its  reci- 
tations are  false 4:?0 

and  that  the  goods  are  not  repleviable 4:50 

even  though  only  one  of  the  defendants  has  them. . .     4:iO 

liability  of  plaintiff  for  the  acts  of  the  officer 4:{0 

return,  effect  of  as  evidence 4;Jl 

before  seizure  of  all  the  goods,  premature,  the  writ 

may  be  witlidrawn  by  leave  of  court 4:J1 

execution  of  the  writ  waived  by  appearance 4:50 

by  giving  bond  and  retaining  the  goods 4:50 

officer  must  see  that  it  is  valid  on  its  face 278,  27'J 

lies  for  propertj'  in  jurisdiction  of  court  wliere  it  issued 421 

does  not  lie  for  an  undivided  interest 141  et  setj. 

does  not  authorize  severance  of  real  estate 275 

goods  taken  on,  in  the  custody  of  the  law 244 

does  not  lie  for  property  taken  for  tax 217,  218  et  seq. 

goods  taken  on,  cannot  be  retaken  until  the  court  orders 244 

abatement  of,  return  does  not  necessarily  follow 435,  4;5li 

writ  quashed  and  goods  returned  when  delivered  without 

bond 349,  :):>') 

may  issue  witiiout  command  to  deliver 3.")S 

date  of,  not  conclusive  as  to  when  suit  was  begun 677,  67S 

irregularities  in,  will  not  defeat  suit  on  bond 391 

rights  of  plaintiff  imder,  pending  suit 422  et  scij. 

rights  of  plaintiff  under,  to  property 423  et  sen. 

does  not  tend  to  show  title  in  plaintiff 422 

does  not  confer  title 422 

rights  which  it  confers  on  plaintiff 421 

confers  but  a  temporary  right  of  possession 424 

return  of 42 1 

officer's  return  to 277 

return,  how  far  conclusive 277 

of  retonio,  must  de.scribe  the  goods 417 

only  authorizes  seizure  from  person  named 2."">u 

of  loitheruuvi 14 

of  attachment,  sheriff  defending  must  show  a  debt 2X0 

of  execution,  lien  of,  continuing 3S1 

WRONGFUL  TAKING, 

what  is  49,  333 


INDEX.  j50; 

PAOI 

WRONGFUL  TAKiyCT—Contiuned. 

unless  fulloweil  Ity  detention  will  not  sustain  replevin....  130,  133 

demand  not  neressai y 319-322,  325 

proof  of,  to  excuse  a  demand 4U 

no  change  to  tlie  title  by  change  of  form 180 

damages  estimated  from  time  of  taking 402 

wliat  is  suHicient  against  officer 134 

WRONG-DOER, 

not  permitted  to  question  title  of  one  in  possession 117 

WRONGFUL  DETENTION, 

what  is Ill 

the  gist  of  the  action 131.  132 

necessary  to  sustain  replevin 130.  131 

exception  to  this  rule 131.  132 

averment  of,  essential 555,  5.")() 

will  not  sustain  averment  of  wrongful  taking 541 

Y. 

YOUNG  OF  ANIMALS. 

born  pending  suit  follow  judgment 443 

plaintiff  may  recover 132 


LAW  LIBRARY 

UNIVERSITY  OF  CALIFORNIA 
LOS  ANGELES 


UC  SOUTHERN  REGIONAL  LIBRARY  f  ACILITV 

lllllllllllii  ' 


AA    000  847  834    9 


LMVERSITV  OF  CALIFORNIA   LIHKAKV 

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This  book  is  DL'E  on  tlu-  last  date  stamped  hi-lou. 


MAY  2  2  1970 


Form  L9-fierle«  4939 


